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[2026] NSWSC 951
Supreme Court of NSW
2026-08-11
Williams J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Estate of the late Wilma Annette Pusterla [2026] NSWSC 951
Hearing dates: 9-11 March 2026
Date of orders: 11 August 2026
Decision date: 11 August 2026
Jurisdiction: Equity - Succession & Probate List - Probate
Before: Williams J
Decision: See orders at [153].
Catchwords: SUCCESSION — Contested probate — Testamentary capacity — Where will executed by the deceased in 2023 gave the deceased’s entire estate to the plaintiff — Where the deceased’s previous wills had made no gift to the plaintiff and had given all or most of her estate to charities — Where the terms of the 2023 will were inconsistent with the deceased’s intention expressed to the plaintiff that she would leave him her house — Whether the 2023 will was rational on its face — Whether the deceased had testamentary capacity to make the 2023 will, which was in simple terms — Held: The deceased had testamentary capacity to make the 2023 will.
SUCCESSION — Contested probate — Knowledge and approval — Where the plaintiff was instrumental in the preparation and execution of the 2023 will — Where the plaintiff took the entirety of the deceased’s estate under the 2023 will, but had never been a named beneficiary of the deceased’s estate in her previous wills — Where the solicitor who prepared the 2023 will took instructions from the plaintiff and had no communication with the deceased — Where the 2023 will departed from the deceased’s previous wills which had given all or most or her estate to charities — Where the deceased was physically frail and legally blind — Where the solicitor who prepared the 2023 will left it to the plaintiff to make arrangements for the deceased to execute the will — Where the deceased executed the will in the presence of two associates of the plaintiff who were not previously known to her in a very short meeting during which they read the will the aloud to her and she signed it immediately afterwards — Where the terms of the will read to and signed by the deceased were inconsistent with the intention she had expressed to the plaintiff to leave him her house — Whether there were suspicious circumstances — Whether the suspicion was dispelled — Held: The will was signed in suspicious circumstances and the plaintiff failed to discharge his onus of proving that the deceased knew and approved the contents of the will.
Legislation Cited: Probate and Administration Act 1898 (NSW), s 74
Zoological Parks Board Act 1973 (NSW)
Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549
Battenberg v Phillips [2020] NSWCA 249
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; [1951] HCA 480
Chalik v Chalik [2024] NSWSC 117
Chen v State of New South Wales (No 2) [2016] NSWCA 292
Croft v Sanders [2019] NSWCA 303
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Estate of Rofe [2021] NSWSC 257
Fuller-Lyons v New South Wales (2015) 323 ALR 639; [2015] HCA 31
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168
Lim v Lim [2023] NSWCA 84
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118
Strong v Woolworths Ltd to Re Estate of Paul Francis Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Vioglo v Bostin (2004) 221 CLR 191; [2005] HCA 11
Watson v Foxman (1995) 49 NSWLR 315
Wild v Meduri (2024) 115 NSWLR 445; [2024] NSWCA 230
Category: Principal judgment
Parties: Philip Jeffrey Beaumont Smith (Plaintiff)
Taronga Conservation Society Australia (ABN 41 733 619 876) (First Defendant)
World Wide Fund for Nature Australia (ABN 57 001 594 074) (Second Defendant)
NextSense (formerly the Royal Institute for Deaf and Blind Children) (ABN 53 443 272 865) (Third Defendant)
MS Plus Limited (formerly the Multiple Sclerosis Society of NSW) (ABN 66 004 942 287) (Fourth Defendant)
International Fund for Animal Welfare (Australia) Pty Ltd (ABN 90 002 655 754) (Fifth Defendant)
Guide Dogs NSW/ACT ABN 52 000 399 744 (Sixth Defendant)
Representation: Counsel:
Mr R D Wilson SC (Plaintiff)
Mr N Bilinsky (Defendants)
Solicitors:
MP&S Legal Partners (Plaintiff)
Harris & Company (Defendants)
File Number(s): 2024/44876
Publication restriction: N/A
These proceedings concern the estate of the late Wilma Annette Pusterla, who died on 17 December 2023.
By her last will made on 12 October 2023, the deceased appointed the plaintiff as her sole executor and left the whole of her estate to him.
The deceased’s estate comprises a property at Willoughby with an estimated value of $3,130,000 (the Willoughby property), shares with an estimated value of $9,370, and cash of approximately $23,886. The present value of the net assets of the estate is approximately $2,994,402.
The plaintiff commenced these proceedings on 21 August 2024 seeking a grant of probate in solemn form of the deceased’s last will dated 12 October 2023.
The defendants are charities to which the deceased gave part of her estate under her previous will dated 25 August 2020 and also, in the case of most of the defendants, under earlier wills dated 22 May 2017, 6 August 2014, 12 December 2013 and 1 December 2010.
The defendants allege that:
the deceased lacked testamentary capacity when she executed the will on 12 October 2023;
alternatively, the deceased did not know and approve the contents of that will; and
alternatively, the deceased executed that will under the undue influence and control of the plaintiff.
By cross-claim filed on 5 November 2024, the defendants seek a grant of letters of administration of the will of the deceased dated 25 August 2020 to James Edward Behringer, being the person appointed as syndic to the first defendant, Taronga Conservation Society Australia.
The plaintiff disputes the defendants’ allegations, but accepts that the order sought in the cross-claim should be made in the event that the Court does not uphold the will dated 12 October 2023.
For the reasons that follow, I have determined that the deceased had testamentary capacity when she executed the 12 October 2023 will, but that the will is invalid because it was executed in suspicious circumstances and the evidence does not establish that the deceased knew and approved the contents of the will and appreciated the gravamen of the document. If it had been necessary to determine the defendants’ claim of undue influence, I would have held that the defendants failed to prove that the 12 October 2023 will was procured by coercion. I have considered all of the parties’ written and oral submissions in the process of arriving at those conclusions, although I have not found it necessary to repeat the substance of all of those submissions in order to explain my reasons.
The deceased was in a relationship with Mr Philip Lamond Smith from about the mid-1970s until Mr Smith passed away in mid-2016. Mr Smith had two adult children from his prior relationship – the plaintiff, Mr Philip Jeffrey Beaumont Smith, and a daughter named Nancy. The deceased had no children. The deceased and Mr Smith never married, but they lived together at the deceased’s home in Willoughby for many years. The deceased had grown up in that home and inherited it from her parents.
Towards the end of his life, Mr Smith moved into a nursing home after he developed dementia and his temperament changed to the extent that the deceased was unable to care for him. There is a discrepancy between the evidence of the plaintiff and the evidence of one of the deceased’s closest friends, Ms Virstine Yazdanparast, about whether Mr Smith moved into the nursing home in 2012 or in 2015. As explained at [26]-[27] below, aspects of Ms Yazdanparast’s evidence are unreliable. Having regard to the solicitors’ correspondence to which I refer at [23] below, I prefer the plaintiff’s evidence about the timing of Mr Smith’s deterioration and move to the nursing home and I find that this occurred in 2015.
After Mr Smith moved into the nursing home, the deceased increasingly relied on her other close friend, Ms Barbara Vasek, to help her by driving her to appointments and completing paperwork. The deceased was suffering from osteoarthritis and her eyesight was failing due to macular degeneration. The deceased had no living relatives to assist her. Ms Yazdanparast maintained close contact with the deceased, but was unable to provide practical assistance of the kind offered by Ms Vasek as she had been diagnosed with multiple sclerosis in 2013 and was experiencing difficulties with mobility. The plaintiff was living, and continues to live, at Hill Top together with his family. Hill Top is approximately a one hour and twenty minute drive from Willoughby.
Mr Smith died in mid-2016.
The evidence given by the plaintiff, and the evidence adduced by the defendants from Ms Yazdanparast and Mr John Vasek, convey very different pictures of the plaintiff’s relationship with Mr Smith and with the deceased during the period while Mr Smith was alive.
The plaintiff was in his early twenties when Mr Smith and the deceased commenced their relationship. The plaintiff was living independently by the time Mr Smith moved in with the deceased. The plaintiff never lived together with them or even stayed with them, and he does not suggest that the deceased had any role in his upbringing.
According to Ms Yazdanparast’s evidence, she shared many occasions with the deceased and Mr Smith, and she came to learn that Mr Smith had two adult children – a son named Jeff and a daughter. The plaintiff is known by the name Jeff. In her affidavit affirmed on 6 May 2025, Ms Yazdanparast deposed that the name of Mr Smith’s daughter was Stephanie. In cross-examination, Ms Yazdanparast accepted that she must have been mistaken about the name of Mr Smith’s daughter.
On 1 December 2010, the deceased made a will under which she appointed her friend Barbara Vasek as her executor and trustee and gave a gold ring set with rubies and diamonds to Ms Vasek. The will provided that, if Mr Smith survived the deceased for 30 days, the Willoughby property was given to her trustee on trust to permit Mr Smith to use, occupy and enjoy it during his lifetime subject to certain conditions. On the death of Mr Smith, or upon Mr Smith ceasing to occupy the Willoughby property (or any substituted property purchased for his use under the terms of the trust) as his principal place of residence, the Willoughby property (or any substitute residence) was to form part of the deceased’s residuary estate which was given to the deceased’s trustee on trust for five charities: the Zoological Parks Board of New South Wales (to be applied for the benefit of Taronga Park Zoo); the Multiple Sclerosis Society of New South Wales; Guide Dogs NSW/ACT; the Royal Institute for Deaf and Blind Children; and World Wide Fund for Nature Australia. If Mr Smith did not survive the deceased by 30 days, the Willoughby property was given to the deceased’s friend Ms Nancy Julleson, and her residuary estate was given to her trustee on trust for the five charities. The deceased made no gift to the plaintiff under the will dated 1 December 2010. The deceased’s execution of the will was witnessed by Mr Robert Francis Windeyer (a solicitor, of Chatswood) and a Ms Styles (a clerical officer, of Chatswood).
On 8 March 2011, the deceased executed a codicil to her 1 December 2010 will by which she amended the disposition of her estate in the event that Mr Smith did not survive her for 30 days by giving certain shares to Ms Nancy Smith (the daughter of Mr Smith) and giving the Willoughby property to Ms Julleson. The codicil was prepared by Atkinson Vinden Lawyers, of Chatswood, and was again witnessed by Mr Windeyer and Ms Styles.
On 12 December 2013 the deceased made a handwritten will that was witnessed by Mr Windeyer. The will revoked all previous wills, appointed Ms Vasek as the deceased’s executor and trustee (or Ms Nola Mary Gold in the event that Ms Vasek was unable or unwilling to act), gave her gold ring set with diamonds and rubies to Ms Vasek, reaffirmed the gift of a life estate in the Willoughby property to Mr Smith in her 1 December 2010 will, and gave the residue of her estate to her trustee to hold on trust for the five charities named in her 1 December 2010 will, Ms Vasek, and Ms Julleson, in equal shares.
On 6 August 2014, the deceased made a further will revoking all previous wills and testamentary dispositions. The deceased appointed as her executor and trustee Ms Vasek or, if Ms Vasek predeceased her or was unable or unwilling to act, Ms Julleson. The deceased gave Ms Vasek her gold ring set with rubies and diamonds. The deceased gave certain shares to Mr Smith, or to Ms Smith in the event that Mr Smith did not survive the deceased. If Mr Smith survived the deceased for 30 days, the Willoughby property was given to her trustee on trust for use and occupation by Mr Smith as his principal residence during his lifetime. On the death of Mr Smith, or upon Mr Smith ceasing to occupy the Willoughby property (or any substitute property purchased for his use under the terms of the trust) as his principal place of residence, the Willoughby property (or any substitute residence) was to form part of the deceased’s residuary estate. The residuary estate was given to the deceased’s trustee to be divided into seven equal shares and distributed to Ms Vasek, Ms Julleson, and the five charities named in the deceased’s 1 December 2010 will (save that the Zoological Parks Board of New South Wales was now referred to as the Taronga Conservation Society Australia). As in her previous three wills, the deceased made no gift to the plaintiff. This will was prepared by Atkinson Vinden, solicitors, who had also prepared the previous three wills. The deceased’s execution of this will was witnessed by Mr Windeyer and another solicitor, Ms Rickert.
As I have already mentioned, Mr Smith passed away in mid-2016. The plaintiff gave evidence which was not challenged in cross-examination that he had frequent personal contact with the deceased over the following months while Mr Smith’s estate was being administered.
The deceased accepted the plaintiff’s invitation to stay at his home at Hill Top to celebrate Christmas with his family in 2016 – the first Christmas after the death of Mr Smith.
On 22 May 2017, the deceased made a further will by making handwritten amendments to her will dated 6 August 2014 and re-signing that document (as amended) in the presence of Mr Windeyer. Under this will, the deceased appointed Ms Vasek as her executor and trustee or Ms Wendy Cullen in the event that Ms Vasek predeceased her or was unable or unwilling to act. The deceased gave her gold ring set with rubies and diamonds to Ms Vasek. The deceased gave the residue of her estate – including the Willoughby property and the shares that she had previously bequeathed to Ms Smith in the event that Mr Smith predeceased her – to her trustee on trust to be divided into six equal shares to be held for Ms Vasek and each of the five charities named in the 6 August 2014 will.
According to the plaintiff’s evidence, he stayed in touch with the deceased by phone, and they routinely celebrated birthdays and Christmas, and sometimes caught up over lunch, until the commencement of the public health travel and gathering restrictions in 2020. For one Christmas, the plaintiff drove from Hill Top to visit the deceased on Christmas Eve and delivered a hamper for her to enjoy on Christmas Day. The plaintiff does not identify the year in which this occurred, and it is not clear whether his references to routinely celebrating birthdays and Christmas with the deceased mean that they met and celebrated in person, or that they had telephone contact with one another on those occasions.
Ms Yazdanparast gave evidence that she recalled the deceased telling her that she had only heard from the plaintiff twice after she stayed with him for Christmas in 2016. I do not regard that evidence as being inconsistent with the plaintiff’s evidence referred to above because Ms Yazdanparast does not identify when the deceased is said to have told her that she had only heard from the plaintiff twice. Having regard to the role that the deceased asked the plaintiff to play in the future management of her affairs in August 2020, as referred to below, it is inherently unlikely that the deceased only heard from the plaintiff twice over a lengthy period of time after Christmas in 2016.
The deceased continued to rely very heavily on Ms Vasek to take her to medical appointments.
The plaintiff’s unchallenged evidence is that he drove the deceased to the offices of Atkinson Vinden at Chatswood at her request on 25 August 2020. Ms Vasek was also present at Atkinson Vinden’s office on that occasion. The documentary evidence establishes that the deceased executed a will and an appointment of enduring guardian in the presence of Mr Windeyer of Atkinson Vinden on that date.
“Mini Mental State Examination: Score 29. This result indicates that no significant cognitive impairment has been identified.”
Ms Vasek became seriously ill and was hospitalised in early 2023. The deceased had come to rely on Ms Vasek to support her, including taking her to medical appointments, as she had become frail and her eyesight was deteriorating. The deceased told Mr Vasek about this time that she was worried about Ms Vasek, and she was also worried about what would happen to her if Ms Vasek was unable to look after her.
On 27 March 2023, the deceased, then aged 91 years, was admitted to Royal North Shore Hospital after a fall at home. Mr Vasek had attended the deceased’s home by prior arrangement that day and discovered the deceased lying on the floor. Together with the deceased’s neighbour, Ms Katrina Howard, Mr Vasek gained access to the house and called an ambulance. Social workers’ notes included in the hospital records note that Ms Vasek was listed as the first contact person for the deceased, and refer to the deceased relying on support from her neighbour.
Mr Vasek visited the deceased twice at Royal North Shore Hospital. In his affidavit, Mr Vasek deposed that the deceased appeared to be disoriented and forgetful, that she did not appear to understand what had happened, and that she was repetitive in her speech. In cross-examination, Mr Vasek gave evidence that the deceased recognised him straight away, and that he visited with her for about an hour on each occasion during which they discussed Ms Vasek’s condition and the deceased’s distress about Ms Vasek being unwell. Mr Vasek explained that the deceased’s speech was repetitive in that she was recounting and repeating stories from earlier in her life that they had discussed many times before. Mr Vasek explained that this was the confusion to which he had referred in his affidavit. Mr Vasek gave evidence that he had described the deceased as frail because she had just had a fall in the home where she had lived for 90 years and that appeared to him to have caused her to lose confidence. Mr Vasek also explained that the deceased did not understand what was happening to her because she did not know how long she was going to be in hospital. I infer that the deceased understood that she was in hospital.
The deceased was transferred to Longueville Private Hospital on 3 May 2023.
At about this time, the plaintiff became concerned that his telephone calls to the deceased’s home were unanswered. He made inquiries and ascertained from Mr Edwards that the deceased was in Longueville Private Hospital. Once he knew the deceased’s whereabouts, the plaintiff visited her at Longueville Private Hospital about once a week.
The plaintiff’s first visit appears to have occurred on 6 May 2023. The plaintiff sent a text message to Mr Vasek on that day stating that he was with the deceased and asking Mr Vasek to pass on the plaintiff’s mobile number to the deceased’s neighbour, Ms Howard, in case she should need to contact him in the future.
“post family meeting spoke to Jeff alone. Discussed MoCA suggesting of some underlying cognitive impairment with short term memory loss. Quite repetitive, not often retaining teams discussion from one day to the next. Jeff has noted the same. Still has capacity to make supported decisions regarding her DC destination, but does have some limited insight into her function to be able to weigh up risk versus benefit of respite versus rehab versus home.”
The plaintiff sent a text message to Ms Howard on the evening of 24 July 2023 informing her that “the hospital are going to apply for two weeks of rehab at a rehabilitation facility and see how much she improves enough to go home – if there’s no marked improvement then Wilma will go into respite care – they weren’t too happy about it but they’re going to apply – we’ll see haw [sic] it goes as and when it pans out”**. Ms Howard replied: “Well done Jeff for pushing for this. Was Wilma ok with it all?”
The deceased participated in an aged care assessment at Royal North Shore Hospital on 3 August 2023. The assessment records the deceased’s history of medical conditions, including that she was legally blind, had coronary artery disease, osteoporosis, and heart failure. The deceased was assessed as having a likely significant level of dependence in activities of daily living. The assessment report records that the deceased had “a supportive stepson (Jeff) who lives in the Southern Highlands who is involved in her care and decision making” and a supporting neighbour who did the deceased’s shopping for her and checked in on her regularly. At the deceased’s request, the assessor contacted the plaintiff after the assessment and requested that he sign the consent form for the assessment on the deceased’s behalf. The assessment report includes the following note concerning the deceased’s cognition and mood:
“Presented as alert, orientated and happy to participate in today’s ACAT assessment. She expressed no mood concerns. Stated that she remembers ‘things that are important’. Noted to be repetitive in conversation. Jeff stated that she has increasing short term memory loss.
Blind Montreal Cognitive Assessment (MoCA) administered at assessment. Score: 15/22 (attention 6/6, language 3/3, abstraction ½, delayed recall 0/5, orientation 5/6).
Modified version due to Ms Pusterla being legally blind.”
Later hospital notes record the outcome of the “Blind MOCA” as 11/20.
According to the plaintiff’s unchallenged evidence, the deceased ultimately accepted the idea of going to respite care after several conversations with the plaintiff, but on strict conditions: the deceased would have her own room and bathroom, and the facility would not be a nursing home and would offer good food. On 8 and 9 August 2023, Royal North Shore Hospital made enquiries of various facilities, and referred to the plaintiff the details of three facilities that were able to offer the deceased a respite care place. Two of those facilities did not meet the deceased’s requirement for her own room and bathroom. The third facility – Bernard Austin Lodge in Liverpool – was able to offer a place that met the deceased’s requirements. The deceased was initially hesitant about accepting a place at a respite facility in Liverpool, which was about 40 minutes away from her home. However, the plaintiff reassured her that he would bring personal items from her home to help her feel comfortable.
On 18 August 2023, the plaintiff signed the form for the deceased’s admission to Bernard Austin Lodge.
The deceased was discharged from Royal North Shore Hospital to Bernard Austin Lodge on 22 August 2023. According to the plaintiff’s evidence, the infection in the deceased’s jaw and the resulting loss of tissue meant that she was only able to drink thickened water and she was only able to eat pureed meals. According to medical records maintained by Bernard Austin Lodge, the deceased weighed 36.8 kilograms on admission. Her weight declined to 35.6 kilograms on 15 September 2023, 35.2 kilograms on 15 October 2023, 33.4 kilograms on 15 November 2023 and 27.4 kilograms on 16 December 2023.
On 24 August 2023, the plaintiff sent a message to Ms Howard advising that the deceased was in respite care in Liverpool.
Over several weeks following the deceased’s admission to Bernard Austin Lodge, the plaintiff brought clothes to the deceased from her home in Willoughby so that she could choose the ones that she wanted to have in her wardrobe at Bernard Austin Lodge.
The plaintiff also purchased a Diamond Screen Samsung TV for the deceased so that she could watch television in the privacy of her own room.
On 5 September 2023, Ms Yazdanparast and the plaintiff exchanged the following text messages:
Ms Yazdanparast: “… Wilma is over the moon with her new toy. She got it this morning. The TV is clear and she can see and enjoy her favourite shows now. Her mood and frame of mind is very upbeat and happy. She has asked me to thank you ever so much for the time and effort you have taken from your hectic schedule, to make her comfortable and happy. Please accept my gazillion thanks as well. I know that I too have, to times, been a bit pushy too. Warmly, Virstine.”
Plaintiff: “See her favourite shows Verstine?”
“That’s bloody marvellous”
Ms Yazdanparast: “Yes. She’s watching Eddie McGuire now and is cock a hoop with joy.”
The plaintiff gave evidence that the deceased settled in quite well to Bernard Austin Lodge, expressed contentment with her new surroundings, and accepted that “I won’t be returning to my little home”.
The plaintiff submitted documentation to Centrelink on behalf of the deceased in order to determine the government funding level to which the deceased was entitled for her care at Bernard Austin Lodge. Contemporaneous email correspondence between the plaintiff and the operators of Bernard Austin Lodge indicated that fees of about $7,000 per month were likely to be payable by the deceased. One charge of $7,000 was deducted from the deceased’s account following her admission. At the time of her admission to Bernard Austin Lodge, the deceased had cash at bank of about $24,000. So far as the plaintiff was aware, the deceased’s only assets were her cash and the property in Willoughby. The plaintiff was aware that the deceased entered into a residential loan agreement with St George Bank pursuant to which she borrowed $100,000. The loan, together with interest which accrued monthly and was capitalised, was repayable on her death and was secured by mortgage over the Willoughby property. The parties referred to this as the reverse mortgage.
At some time within the first few weeks of the deceased’s admission to Bernard Austin Lodge, and before 18 September 2023, the plaintiff and the deceased discussed the possibility that the Willoughby property might need to be sold in order to fund her accommodation and care at Bernard Austin Lodge. The deceased told the plaintiff that she would agree to this if she otherwise had insufficient funds to meet her care needs. At that time, the plaintiff and the deceased were awaiting the Centrelink determination, which the plaintiff ultimately received in January 2024, after the deceased had passed away.
As the plaintiff acknowledged in cross-examination, the deceased had sufficient cash to fund her accommodation and care in the short-term. Plainly, that cash would not be sufficient beyond the short-term if the fees were in the order of $7,000 per month. The deceased’s bank account statements record that the following fees were debited by Uniting Church Australia, which operated Bernard Austin Lodge: $825.72 on 31 August 2023, $1,533.48 on 20 September 2023, $7,661.80 on 20 October 2023, $1,900 on 20 November 2023, $1,900 on 20 December 2023, and $5,350.18 on 21 December 2023. Although most of those charges were debited after the plaintiff and the deceased discussed the possibility that the Willoughby property may need to be sold, they demonstrated that the plaintiff’s concern about whether the deceased had sufficient cash to fund her accommodation and care beyond the short-term was well-founded.
During cross-examination, it was put to the plaintiff that, as the deceased’s attorney, he could have raised additional funds for the deceased’s accommodation and care by increasing the borrowings secured by the reverse mortgage over the Willoughby property so as to avoid the need to consider selling the property and so as to avoid having to discuss the possible sale of the property with the deceased. The plaintiff gave evidence that he had not considered the possibility of increasing the deceased’s borrowings at the time. Even if the plaintiff had considered that possibility, the terms of the deceased’s residential loan agreement with St George indicate that it would not have been possible for the plaintiff to increase the deceased’s borrowings secured by the reverse mortgage in order to fund her long-term accommodation and care at Bernard Austin Lodge. In particular, the terms provided that it was an event of default if the deceased ceased to permanently occupy the mortgaged property. By the time the deceased was admitted to Bernard Austin Lodge on 22 August 2023, she had not occupied the property for almost five months, with the exception of one day on 14 July 2023. The evidence does not disclose any realistic prospect of the deceased being able to return to live in the property, despite her wish to do so. In those circumstances, any financial institution would be concerned about the obvious risk of allegations of unconscionable conduct if it were to lend further monies to the deceased, on which interest would accrue and compound, diminishing the value of her equity in the property, for the purpose of the deceased funding her accommodation and care in an aged care facility. Even if the plaintiff had been able to persuade St George to increase the loan secured by the reverse mortgage, it is difficult to see how the plaintiff could have satisfied himself that it was in the deceased’s best interests to increase her liabilities secured against the home in which she could no longer live, rather than selling the home and earning interest on the proceeds while gradually applying those proceeds and the interest to fund the costs of her accommodation and care.
“Q. I want to put it to you squarely, Mr Smith, that the conversation you had in fact had with Wilma was along these lines, ‘We won't need to sell your home, and you won't need to worry about not having enough money if you leave your house to me’. That's what I'm suggesting you said to her.
A. No. That's not what happened.
…
Q. You assure her, didn't you, that it was a very easy thing to do and that you could arrange it all for her and she just rolled over and agreed to your proposal. That's the fact, isn't it?
A. No.
Q. You knew that she was cognitively on the slide, didn't you?
A. No.
Q. You knew that she was so enfeebled and reliant upon you that she was powerless to suggest any suggestion that you put to her?
A. No.
Q. Because you knew that she couldn't deal with the thought of selling her home, you were able to impose yourself upon her and suggest that all would go away if she just gifted her home to you. That's the fact, isn't it?
A. No.”
The evidence referred to at [82] and [84]-[85] above establishes that the plaintiff’s opinion in September 2023 that it would likely be necessary to sell the Willoughby property in order to fund the deceased’s care and accommodation beyond the short-term, was well-founded. There is no evidence that the plaintiff had the financial means to fund the deceased’s care and accommodation beyond the short-term if the Willoughby property was not sold. The terms of the deceased’s previous wills referred to at [29]-[40] above show that she had always contemplated her home being sold after her death. There is no evidence of any reason why the prospect of selling the property in order to fund her accommodation and care at Bernard Austin Lodge, where the deceased was “comfortable and happy” according to Ms Yazdanparast’s message to the plaintiff on 5 September 2023, would have been so distressing to the deceased that she would have contemplated radically changing her testamentary intentions in order to retain the property to which she must have understood she had no realistic prospect of returning given her frail physical condition, deteriorating eyesight, and other co-morbidities. The evidence does not support the proposition that the deceased was “cognitively on the slide”, whatever that may mean. No significant cognitive impairment had been identified in a mini mental state examination on 19 December 2022. [2] Signs of short-term memory loss had been observed in late July and early August 2023, by which stage the deceased had been in hospital for four months. A junior medical officer noted that this suggested some underlying cognitive impairment, but no diagnosis was made. [3] According to Ms Yazdanparast’s contemporaneous text messages and evidence referred to below, the deceased tended to have strong views and had her own opinions about political matters in September 2023, including the forthcoming referendum in which she wished to vote, and was perfectly capable of operating an iPad. [4] Those circumstances, considered as a whole, do not give rise to a probable inference that the plaintiff suggested to the deceased that she would not need to worry about having enough money to fund her accommodation and care if she left the Willoughby property to him, and that it would be easy for him to arrange that for her, and that she accepted those suggestions. It is at least equally probable that the deceased changed her testamentary intentions to leave the Willoughby property to the plaintiff, in the event that it did not have to be sold during her lifetime, because she was grateful that the plaintiff had stepped in to the role of managing her affairs and assisting her following the death of Ms Vasek in circumstances where the deceased had no one else in her life who was willing and able to do so. [5]
On 18 September 2023, the plaintiff sent an email to Mr Mathey which stated:
“Spoke with Wilma – she would like to formalise her will – can/would you visit her at this new address please – Bernard Austin Lodge – 12 Boundary Road, Liverpool – it’s a Uniting Care facility – let me know once you’ve had an idea when – thanks – Jeff”
I accept the plaintiff’s evidence given in cross-examination denying that he engaged Mr Mathey because he expected that Mr Mathey would follow the plaintiff’s directions as he had done in preparing the enduring guardianship and power of attorney documents in June 2023, because the plaintiff did not wish the deceased to receive disinterested advice, and because he feared that Atkinson Vinden would have advised the deceased that she did not need to leave her home to the plaintiff in order to guarantee her tenure at Bernard Austin Lodge. Each of those propositions put to the plaintiff was based on a false premise. The evidence does not establish that Mr Mathey had simply followed the plaintiff’s directions in preparing the deceased’s enduring guardianship and power of attorney documents. The plaintiff had simply informed Mr Mathey about the nature of the documents that the deceased wished to have prepared and her wish to appoint him as guardian and attorney. Mr Mathey had attended on the deceased and explained those documents to her before she executed them. The evidence does not establish that there was any connection between the deceased’s decision to leave the Willoughby property to the plaintiff and her desire for security of tenure at Bernard Austin Lodge. More importantly, the plaintiff’s initial communication with Mr Mathey on 18 September 2023 simply informed Mr Mathey that the deceased wished to make a will and requested him to attend on the deceased, leaving it to Mr Mathey to take instructions from the deceased about the terms of the will she wanted to make and to discharge the retainer in the manner that Mr Mathey thought fit. The manner in which Mr Mathey subsequently discharged his retainer was highly questionable, to put it mildly, as will become apparent below. However, I do not consider that the evidence supports an inference that the plaintiff expected or intended when he contacted Mr Mathey on 18 September 2023 that Mr Mathey would act in the manner that he subsequently did.
On 19 September 2023, Ms Yazdanparast sent a text message to the plaintiff asking him to organise a postal vote for the deceased as she wished to participate in the upcoming referendum, and asking him to call the deceased as she was feeling lonely. In cross-examination, Ms Yazdanparast gave evidence that the deceased tended to have strong views, that she had strong views about the referendum and had her own opinions about various political issues in September 2023.
Ms Yazdanparast and the plaintiff exchanged text messages on 20 September 2023 in relation to the logistics of setting up an iPad for the deceased and teaching her how to use it. According to the plaintiff’s evidence, it was difficult for the deceased to use the iPad’s voice recognition capability because she was unable to articulate words clearly as a result of the damage to her jaw. The plaintiff’s message to Ms Yazdanparast reassured her that “we’ll figure it out don’t worry”. Ms Yazdanparast and the plaintiff exchanged further messages about the iPad on 22 September, 23 October and 11 November 2023 in which Ms Yazdanparast repeated her requests for the iPad to be set up and insisted that the deceased was capable of using it through voice commands. The plaintiff reiterated that he would do so. It is plain from the tenor of Ms Yazdanparast’s messages and from her affidavit evidence that she was exasperated that the iPad was not set up because she felt that it would enable the deceased to communicate with her friends and listen to music and audio books. It is also plain from those messages that Ms Yazdanparast appreciated at the time that the plaintiff had many things to do so, although she is less understanding of that in her affidavit evidence.
“Presumably you’ll need more information re: drafting of Wilma’s will – the address of the home she wants to revert to me is as follows:
57 Edinburgh Road
Willoughby East NSW 2068
There’s some other elements you’ll want to know about regarding the house which we’ll need to discuss – let me know when you’re ready …”
Mr Mathey ultimately sent the deceased’s draft will to the plaintiff by email on 11 October 2023. On the morning of 12 October 2023, Mr Mathey sent the plaintiff an amended draft which had corrected an error in the spelling of the deceased’s surname. In the meantime, the plaintiff had explained to the deceased that two witnesses would be required to witness her execution of the will, and had suggested two persons with whom he worked as the witnesses. The deceased had agreed to the plaintiff’s suggested witnesses.
Mr Mathey gave the following evidence in his affidavit affirmed on 17 March 2025:
“I received an email from the plaintiff on 18 September 2023 regarding preparation of a Will for the deceased.
As I had met the plaintiff on many occasions, and met the deceased on one occasion, I prepared a simple Will for the deceased.
The Will is a simple one because the instructions were quite straightforward.
I have previously prepared similar Wills where the instructions of the testator are to have one and the same Executor and beneficiary.
I did not travel to witness the deceased sign the Will due to the distance and there being no requirement for a Will to be witnessed for a solicitor.”
“Q. You’ll see that Mr Smith had written to you there that he was there to receive Wilma’s house and he gives you the address; do you see that?
Yes.
Q. Yet in the will that I’ve just taken you to, Mr Smith ultimately gets everything, doesn’t he?
A. Yes.
Q. The entirety of her estate?
A. Yes.
Q. There’s no correspondence between you two about that, is there?
A. No, there were a couple of phone calls.
Q. You don’t say anything about that in your affidavit, do you?
A. No, I don’t – I hadn’t remembered them but I needed to talk to him about what that meant, the house, and it appeared that she didn’t have much more than the house.
Q. So instead of confirming that it was just the house that he was to receive, he confirmed with you that he was to get the whole of her estate, the whole estate, kit and caboodle?
A. To the best of my recollection, in a phone call, yes.
Q. For the reason, you removed any reference to a residuary course?
A. Well, there was no need for one.
Q. All through this period, you never took any instructions from Wilma directly?
A. Correct.
Q. You never sought to confirm independently that this is what she wanted, correct?
A. Correct.
Q. You never sent her a draft of any will, correct?
A. Correct.”
The plaintiff gave evidence in cross-examination that the deceased had only discussed leaving the house to him, and had not told him that she wanted to leave the whole of her estate to him.
There is no evidence that Mr Mathey had any information from the plaintiff, let alone instructions from the deceased, that the deceased wished to appoint the plaintiff as her executor. Mr Mathey was content to leave it to the plaintiff – the sole executor and beneficiary under the will that Mr Mathey had drafted without instructions from the deceased – to arrange for the execution of the will.
On the afternoon of 12 October 2023, the plaintiff went to see the deceased at Bernard Austin Lodge together with his friend Mr Larry Cislowski and his work colleague Mr Christopher Varrica. The plaintiff took with him a copy of the will that had been prepared by Mr Mathey. The plaintiff had told the deceased in advance that he would be visiting her in order for her to sign her will. Given that the plaintiff had only received the will by email from Mr Mathey on the morning of 12 October 2023, I infer that the plaintiff had only informed the deceased about his visit and its purpose earlier on the same day that he arrived in the company of Mr Cislowski and Mr Varrica.
Mr Cislowski and Mr Varrica did not know one another before they accompanied the plaintiff to Bernard Austin Lodge on the afternoon of 12 October 2023. The plaintiff had asked each of them separately to attend for the purpose of witnessing the deceased’s execution of her will. Neither of them had met the deceased prior to 12 October 2023. They knew nothing about her circumstances. The plaintiff asked Mr Cislowski to make sure that the deceased understood the will that she was signing.
Mr Cislowski and Mr Varrica entered the deceased’s room together with the plaintiff. Mr Varrica recalls that they found the deceased sitting in a chair watching television with dinner on the table in front of her. The plaintiff introduced the deceased to Mr Cislowski and Mr Varrica. Mr Cislowski recalls that the plaintiff then put the will on the table in front of the deceased and said “I’ll leave you to it”. The plaintiff then left the room, leaving the deceased alone with Mr Cislowski and Mr Varrica. Mr Cislowski asked the deceased whether she knew why he and Mr Varrica were there, and the deceased replied: “To sign my will”.
The will had not previously been shown to the deceased. As I have already mentioned, Mr Mathey had not discussed the will with the deceased and the deceased had not expressed any intention to the plaintiff to leave him the whole of her estate.
The terms of the will were as follows:
“THIS WILL dated the day of 2023 is made by me WILMA ANNETTE PUSTERLA of Bernard Austin Lodge, 12 Boundary Road, Liverpool in the State of New South Wales
- I revoke all former testamentary dispositions.
- I appoint PHILIP JEFFREY BEAUMONT SMITH to be sole executor of my will and I give the whole of my estate to him.”
“I asked if she understood why we were there.
She said – yes to sign her will
I said I would go through it one line at a time.
At the end of each sentence I asked if she understood. She said yes each time.
At the end I asked if she understood. She said yes where do I sign.
I pointed to the line, she said she could see it (the line) I moved my finger so she could sign properly as she was left handed.
I then signed as a witness and so did Chris.
She seemed pleased it was done and I went to the door and asked Jeff back inside.
I asked her if she enjoyed her room, she said yes and liked that her door faced the morning sun and she would sit there.”
The evidence given by Mr Cislowski and Mr Varrica in their affidavits affirmed in December 2024 – fourteen months after the event – is to substantially the same effect, save that they depose that, when Mr Cislowski finished reading the will and asked the deceased whether she understood, the deceased answered “That’s what I want” (according to Mr Cislowski) or “I know what’s happening” (according to Mr Varrica) before asking “Where do I sign?”. I consider that Mr Cislowski’s contemporaneous note is likely to be more accurate than his recollection or Mr Varrica’s recollection of what the deceased said some fourteen months before they made their affidavits. I do not feel actual persuasion that the deceased said words to the effect of “That’s what I want” or “I know what’s happening”. [6] I find that, when Mr Cislowski asked the deceased if she understood the will that he had read aloud to her, the deceased replied “yes” and asked where she should sign, as recorded in Mr Cislowski’s contemporaneous file note. I find that the meeting between the deceased and Messrs Cislowski and Varrica, which they described as being of short duration, occurred in the manner described in that contemporaneous note. Neither Mr Cislowski nor Mr Varrica asked the deceased why she wanted to make a new will, and she did not volunteer any explanation.
The plaintiff returned to the deceased’s room after the will had been executed. The plaintiff took the executed will with him when he left together with Mr Cislowski and Mr Varrica. Neither the plaintiff nor Mr Mathey ever provided the deceased with a copy of the will.
The plaintiff gave evidence that, during his subsequent visits to the deceased, which occurred about two or three times a week, he and the deceased had two further conversations about the will that she had signed and her generosity to the plaintiff. According to the plaintiff, the deceased said to him words to the effect that “you’ve been very good to me after Phil’s death and since then. Nobody else has done what you’ve done.”
Mr Vasek gave evidence that he had two telephone calls with the deceased while she was at Bernard Austin Lodge, each of which lasted approximately half an hour. Mr Vasek did not give evidence that the deceased appeared to him to be confused, disoriented, or repetitive in her speech during these conversations.
The plaintiff gave evidence that the deceased’s physical health declined and her determination waned over a period of about three weeks before she passed away on 17 December 2023. The plaintiff’s description of that three week decline is broadly consistent with the medical records referred to at [76] above which note significant weight loss between 15 November and 16 December 2023 from the deceased’s already very low weight.
Ms Yazdanparast gave evidence that she last saw the deceased on 12 December 2023. During that visit, the deceased was disoriented and failed to recognise Ms Yazdanparast for about 10 minutes. The deceased’s head was slumped on her chest, she , and she was unable to swallow a mango lassi drink that Ms Yazdanparast had brought for her. Ms Yazdanparast was unable to engage the deceased beyond brief flickers of interest. This very sad description is consistent with the plaintiff’s evidence of the decline in the deceased’s condition during the last three weeks of her life.
MS Plus is a charitable organisation registered with the Australian Charities and Not-for-Profits Commission (ACNC) which raises awareness about multiple sclerosis and fights to improve the lives of people affected by that condition. During the period from 30 July 1985 to 30 March 2023, the deceased made 61 gifts to MS Plus. The amount of each gift was $100 or less. The total amount gifted was $2,531. In August 2012, the deceased notified MS Plus that she had nominated it as a beneficiary in her will. The deceased confirmed this in February 2020. The deceased attended Christmas luncheons hosted by MS Plus in 2014 and 2019.
NextSense – formerly known as the Royal Institute for Deaf and Blind Children – is a charitable organisation registered with the ACNC, the purpose of which is to enhance the lives of people suffering from hearing and vision loss. It relies substantially on donations and bequests to fund the services that it provides to children and adults suffering from impaired hearing and vision. During the period from 20 August 1996 to 14 December 2020, the deceased made donations to NextSense totalling $3,383. The amount of each donation varied between $3.50 and $50.00. The deceased notified NextSense of her intention to leave a bequest to it in her will in April 2011, and confirmed this intention in November 2022. This intention made the deceased a member of the “Hunter Baillie Circle” within NextSense and she attended luncheons in 2011, 2013, 2014, 2016, 2019 and 2022 in addition to touring NextSense’s North Rocks site in 2017 and attending school assemblies at three schools.
World Wide Fund for Nature Australia (WWF) is a charity registered with the ACNC, the purpose of which is to protect biodiversity and the livelihoods of those who rely on nature. It relies heavily on donations and bequests to fund its operations. During the period from 27 February 1990 to 7 February 2023, the deceased made 92 contributions to WWF by way of membership fees and donations totalling $3,700. The amount of each contribution varied from $2.73 to $50.00. The deceased notified WWF of her intention to leave a share of her estate to WWF in July 2011 and in February 2013. This intention made the deceased a member of the “Living Planet Legacy Society” within WWF and as part of which the deceased attended events in Sydney in 2011, 2014 and 2015.
Guide Dogs NSW/ACT (Guide Dogs) is a charity registered with the ACNC, the purpose of which is to provide guide dogs to enable people with vision impairment or blindness to navigate safely and independently in the community. Guide Dogs relies heavily on donations and bequests to fund its operations. During the period from 20 December 2002 to 5 September 2022, the deceased made 35 contributions to Guide Dogs by way of membership fees or donations totalling $1,855. The amount of each contribution varied from $10.00 to $810.00. The deceased notified Guide Dogs in or around September 2007 that the deceased had made Guide Dogs a beneficiary under her will. The deceased confirmed that intention with Guide Dogs in or about February 2020 and in December 2022. In February and March 2023, the Guide Dogs client services team had one telehealth appointment and one in-home appointment with the deceased to assess the deceased’s needs for low vision support. It does not appear that Guide Dogs provided any support following those appointments, as the deceased informed them that she was following up with My Aged Care her request for equipment that would allow her to independently read her mail.
It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made. [7]
The test for capacity was articulated by Cockburn CJ in Banks v Goodfellow: [8]
“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.”
“(a) the capacity to understand the nature of the act of making a will and its effects;
(b) the capacity to understand the extent of the property the subject of the will;
(c) the capacity to comprehend moral claims of potential beneficiaries; and
(d) the absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of [their] property …”
These are matters of capacity, meaning the ability to understand. If the testator has capacity, it matters not that she did not in fact turn her mind to, for example, the extent of her property or any moral claims of potential beneficiaries. [10]
Some degree of cognitive impairment does not necessarily deprive a person of testamentary capacity. The question is: [11]
“… whether the cognitive impairment is such as to affect the ability of the testator to understand the nature and effect of making a will; to understand the extent of his or her property (at least in broad terms) and to be able to comprehend and appreciate the claims on his or her testamentary bounty (i.e., to be able to remember, reflect and reason, as Myers J put it).”
The test for testamentary capacity must be applied in a task-specific way. The simpler the will, the easier it will be to establish testamentary capacity. [12]
As the Court of Appeal explained in Lim v Lim: [13]
“11. It has long been established that the legal onus of proof with respect to testamentary capacity and knowledge and approval, if those issues are raised on the evidence, is on the party propounding the validity of the will. Talk of shifting burdens and of presumptions has been common in this area of the law. The way in which the question of onus is often dealt with in respect of testamentary capacity was summarised by Meagher JA in Tobin v Ezekiel at [45]:
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 17 355; 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.
…
13. Although it is not necessary to resolve the issue here, there is reason to doubt the utility now of the language of presumptions, shifting burdens, and suspicious circumstances. Writing extrajudicially, Justice Lindsay has observed:
Although conventional, this style of language does not sit comfortably with the way a modern probate suit is heard by a judge sitting alone, without a jury, receiving almost all the evidence on both sides of a question by affidavits, upon which deponents are selectively cross examined. In the modern form of “judge alone (case managed) trial” it is generally artificial, at least at a final hearing, to analyse a case in terms of a “prima facie case” or dispositive “presumptions”. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence.
[G 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, at [45]]
14. With specific reference to testamentary capacity, in Carr v Homersham, at [47], Basten JA explained:
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 a 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.”
…the exclusion of persons naturally having a claim on the testator’s bounty and extreme age or illness of a character that has so affected the testator’s mental faculties as to make them unequal to the task of disposing of his or her property …
I reject the plaintiff’s submission that a presumption of testamentary capacity arises in this case. The deceased’s will dated 12 October 2023 was duly executed, but was not rational on its face for two reasons. First, the will departed from the deceased’s long-held intention to give a significant portion of her estate to each of the charities she had actively supported over many years. That intention had been reflected in previous wills made by the deceased, was expressed by the deceased to her friend Mr Vasek, and advised to the charities in question as recently as November 2022 (in the case of NextSense (formerly the Royal Institute for Deaf and Blind Children) and December 2022 (in the case of Guide Dogs). Second, the will even departed from the deceased’s statement to the plaintiff in September 2023 that she wanted to leave him her house. The will executed by the deceased on 12 October 2023 left the plaintiff her entire estate. The residue of the estate if the house was left to the plaintiff would have been modest, but it was significant in the context of the small amounts that it had been important to the deceased to donate to the charities during the course of her life. For those reasons, terms of the will made on 12 October 2023, and particularly the exclusion of the charities from receiving any benefit at all under that will, raises a doubt about the deceased’s testamentary capacity at the time, notwithstanding that the charities could not be said to have a moral claim on the deceased’s estate in the sense described by Gleeson CJ in Vigolo v Bostin. [15] I reject the defendants’ submission that the Chief Justice’s wide-ranging consideration in that case of the concept of the “moral obligations” of testators and “moral claims” on testators’ estates was limited to claims under the legislative predecessors to Chapter 3 of the Succession Act 2006 (NSW). The defendants did not identify any reason why the concept of “moral claims” would mean something different when considering the third element of the test for testamentary capacity in Banks v Goodfellow as enumerated by the Court of Appeal in Lim v Lim.
As the presumption of testamentary capacity does not apply, the plaintiff bears the evidentiary burden of showing that the deceased had testamentary capacity to make the simple will that she executed on 12 October 2023. The Court must consider all of the evidence and the inferences that may be drawn from it in determining whether it is affirmatively satisfied that the deceased had that testamentary capacity, bearing in mind that it is a grave matter to find incapacity and thus invalidate a formally valid will.
There is no medical evidence of the deceased’s mental capacity at or about the time that executed the will on 12 October 2023. As I have mentioned earlier in these reasons, a mini mental state examination on 19 December 2022 had not identified any significant cognitive impairment. [16] Signs of short-term memory loss had been observed while the deceased was in hospital in late July and early August 2023. A junior medical officer noted that this suggested some underlying cognitive impairment. However, as the plaintiff submitted, there is no record of any diagnosis relating to her cognitive functioning or mental capacity. The parties did not adduce any evidence that would permit the Court to interpret or draw any inferences from the outcome of the Blind Montreal Cognitive Assessment in August 2023. [17]
The further precondition of a valid will that the testator knew and approved the will is distinct from the issue of testamentary capacity. [20]
Where testamentary capacity is established and the will has been duly executed, the testator’s knowledge and approval of the contents of the will at the time of its execution is presumed in the absence of evidence of “any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator”. [21]
The circumstances capable of raising such a suspicion are circumstances relating to the preparation or execution of the will, or its intrinsic terms. They may include “the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it.” [22]
The suspicion, if raised, displaces the presumption or assumption as to the testator’s knowledge and approval of the contents of the will at the time of its execution. The onus is then cast on the proponent of the will to remove the suspicion by affirmatively proving that the testator knew and approved of the contents of the will and appreciated the gravamen of the document so that it can be said that “the will contains the real intention and reflects the true will of the testator”. What is required to remove the suspicion will vary according to the degree of suspicion that is aroused by the particular circumstances. Evidence that the testator gave instructions for the will, or that it was read over by or to the testator prior to execution, will often suffice to dispel the suspicion, but that is not invariably so. [23]
“i. The plaintiff was instrumental in the preparation and execution of the
will document.
ii. In arranging for the will document to be signed the plaintiff procured the entirety of the deceased's estate for himself, whereas previously he had never been named a beneficiary of the deceased's estate;
iii. The plaintiff did not have a relationship of any significance with the deceased prior to the death of the deceased's closest friend and confidante, Barbara Vasek, who died on 3 May 2023;
iv. The plaintiff was aware of the deceased's dementing condition and her struggles with short term memory loss at the time of the execution of the document;
v. The deceased never spoke to, nor communicated with, a solicitor about wishing to change her will and never provided any instructions to a solicitor in respect of same;
vi. The deceased inexplicably chose not to rely upon the solicitors whom she had trusted and used for many years, Atkinson Vinden, and was also strangely comfortable with having entire strangers (being colleagues of the plaintiff) attend upon her to sign the document;
vii. The deceased never indicated to her closest friends, nor to the charities which she had consistently supported and named as beneficiaries under every previous will she had made, that she intended to make a new will and remove them as beneficiaries entirely;
viii. The deceased was denied the opportunity to obtain legal advice in relation to the changing of her will;
ix. The deceased was not given the opportunity to read and consider (nor could she) the 2023 will document with the benefit of her previous wills, and was not afforded time to reflect upon the wisdom of disinheriting the charities that had meant so much to her throughout the course of her life;
x. The will was irrational to the extent that it bore no relation to any will which the deceased had ever made before;
xi. At the time the will document was executed the deceased:
(a) was 92 years of age and confined to a nursing home;
(b) weighed approximately 36 kilos;
(c) required significant round-the-clock assistance and supervision, including with mobility, evacuating her bowels and taking medication;
(d) was legally blind;
(e) was suffering from memory loss;
(f) was extremely frail (having already been hospitalised with falls) and was nervous and scared about her increasing future welfare;
(g) was socially isolated from her surviving friends;
(h) was entirely dependant upon the plaintiff, as her newly appointed attorney and guardian, for decision making and her health care needs;
(i) was vulnerable to exploitation.”
The circumstances referred to at (i), (ii), (v), (vi), (vii), (viii), (ix), (x), and (xi)(a), (b), (d), (g), and (h) are established by the evidence and findings referred to at [10]-[122] above. As to (iv) and (xi)(e) above, the evidence establishes that the deceased was exhibiting signs of short-term memory loss while she was in hospital in late July and early August 2023. There is no evidence of a dementing condition. As to (xi)(f) above, the evidence establishes that the deceased was physically very frail, being of very low weight and unable to eat solid food, being legally blind, and having been hospitalised following falls in her own home. I do not consider that the evidence establishes that the deceased remained nervous and scared about her future welfare after the plaintiff agreed to her request to act as her enduring guardian and attorney.
Those circumstances, considered as a whole, give rise to a strong and well-grounded suspicion as to whether the will signed by the deceased on 12 October 2023 contains her real intention and reflects her true will.
The plaintiff has failed to discharge the onus of proving that, notwithstanding those circumstances, the deceased knew and approved the contents of the will. It is true that the will was read aloud to the deceased before she signed it. However, this occurred in circumstances where the plaintiff brought two strangers to her room while she was eating dinner and watching television, the plaintiff left the deceased alone with the strangers after a brief introduction, the deceased understood from a conversation with the plaintiff earlier that day that the purpose of their visit was for her to sign her will, the solicitor who prepared the will had not contacted the deceased or taken any instructions from her in relation to the will, the deceased therefore did not know that the will had been drafted in terms that left the whole of her estate to the plaintiff contrary to her intention expressed to the plaintiff to leave him her house. Furthermore, the deceased gave no indication when the will was read aloud to her that she noticed this discrepancy according to the evidence of Mr Cislowski and Mr Varrica, the whole of the encounter in which the will was read aloud to her and then signed was very short, the will was not left with the deceased afterwards, and the plaintiff’s evidence concerning his conversations with the deceased after the will was signed does not refer to the deceased expressing an understanding that the whole of her estate had been given to the plaintiff under the document that she signed. [24]
The plaintiff endeavoured to downplay the significance of the discrepancy between the deceased’s intention expressed to the plaintiff to leave him her house and the terms of the will that she signed leaving him her whole estate on the basis that the house was the deceased’s principal asset, her cash and securities were worth only a very small fraction of her total estate, and the gift of the whole of the deceased’s estate to the plaintiff effectively constituted a gift of the net equity in her Willoughby property taking into account the loan secured against the property by the reverse mortgage.
The party alleging that a testator executed their last will under the undue influence of another bears the onus of proving the undue influence. This requires proof that the will was procured by coercion, meaning the exertion of pressure on the testator so as to overpower their will and destroy their free agency. Persuasion or influence of the testator’s judgment will not suffice. Pressure amounting to coercion may take many different forms, and need not involve any impropriety on the part of the person exerting the pressure. The physical and mental strength of the testator are relevant, as the will of a weak and ill person in the last stage of their life may be more easily overborne than that of a strong and healthy person. [26]
Undue influence may be determined based on circumstantial evidence and inferential reasoning, but it will not suffice that the circumstances provide some support for an inference of undue influence. Undue influence must be the probable explanation, and the Court will take into account the gravity of the allegation when determining whether the evidence supports a finding on the balance of probabilities. [27]
As I mentioned in the introductory section of these reasons, the plaintiff informed the Court that he accepted that the Court should make the order sought in the cross-claim granting letters of administration of the 25 August 2020 will to the person appointed by Taronga Conservation Society Australia as its syndic in the event that the Court did not uphold the will dated 12 October 2023. I understand that submission to mean that the plaintiff is not willing to take probate of the 25 August 2020 will under which the deceased appointed the plaintiff as her executor in the event that Ms Vasek predeceased her. [29]
The orders of the Court are as follows:
Order that the will signed by the late Wilma Annette Pusterla and dated 12 October 2023 not be admitted to probate.
Order that letters of administration of the estate of the late Wilma Annette Pusterla with the will dated 25 August 2020 annexed be granted to James Edward Behringer, being the person appointed by Taronga Conservation Society Australia as its syndic.
Order that prayers 1 to 3 of the statement of claim are dismissed.
Reserve the question of costs to be determined on the papers.
**********
Watson v Foxman (1995) 49 NSWLR 315 at 319 (McLelland CJ in Eq); GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [59]-[60] (Kiefel CJ, Gageler and Jagot JJ).
See [49] above.
See [69]-[70] and [72]-[73] above.
See [92]-[93] below.
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5-6; [1951] HCA 480 (Dixon, Williams, Webb, Fullagar and Kitto JJ); Luxton v Vines (1952) 85 CLR 352 at 358; [1952] HCA 19 (Dixon, Fullagar and Kitton J) and 362 (McTiernan J); Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [34] (French CJ, Gummow, Crennan and Bell JJ); Fuller-Lyons v New South Wales (2015) 323 ALR 639; [2015] HCA 31 at [47] (French CJ, Bell, Gageler, Keane and Nettle JJ); see also Chen v State of New South Wales (No 2) [2016] NSWCA 292 at [33]-[34] (Leeming JA, McColl JA and Emmett AJA agreeing).
Watson v Foxman (1995) 49 NSWLR 315 at 319 (McLelland CJ in Eq); GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [59]-[60] (Kiefel CJ, Gageler and Jagot JJ).
Lim v Lim [2023] NSWCA 84 (Lim v Lim) at [9] (Kirk JA, Bell CJ and Griffiths AJA agreeing).
Banks v Goodfellow (1870) LR 5 QB 549 at 565.
Lim v Lim at [7]-[8] (Kirk JA, Bell CJ and Griffiths AJA agreeing); Peacock v Knox [2025] NSWCA 160 (Peacock v Knox) at [187]-[188] (Ward P, Adamson and Ball JJA agreeing).
Lim v Lim at [8] (Kirk JA, Bell CJ and Griffiths AJA agreeing); Peacock v Knox at [187]-[188] and [197] (Ward P, Adamson and Ball JJA agreeing).
Peacock v Knox at [195] (and see also [193] and the authorities there referred to) (Ward P, Adamson and Ball JJA agreeing).
Croft v Sanders [2019] NSWCA 303 at [126] (White JA, Bathurst CJ and Gleeson JA agreeing); Lim v Lim at [9] (Kirk JA, Bell CJ and Griffiths AJA agreeing); Wild v Meduri (2024) 115 NSWLR 445; [2024] NSWCA 230 at [261]-[262] (Bell CJ, White and Kirk JJA agreeing); Peacock v Knox at [194] (Ward P, Adamson and Ball JJA agreeing) and the authorities there referred to.
Lim v Lim at [11], [13]-[14] (Kirk JA, Bell CJ and Griffiths AJA agreeing).
Estate of Rofe [2021] NSWSC 257 at [124] (Lindsay J), referring to Re Estate of Paul Francis Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 706-707 (Powell J).
(2005) 221 CLR 191; [2005] HCA 11 at [2]-[25].
See [49] above.
See [69]-[70] and [72]-[73] above.
Peacock v Knox at [118] (Ward P, Adamson and Ball JJA agreeing).
(2005) 221 CLR 191; [2005] HCA 11 at [2]-[25].
Lim v Lim at [10] (Kirk JA, Bell CJ and Griffiths AJA agreeing); Peacock v Knox at [202] (Ward P, Adamson and Ball JJA agreeing).
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Tobin v Ezekiel) at [46] (Meagher JA, Basten and Campbell JJA agreeing).
Ibid at [47] (and the authorities there cited).
Nock v Austin (1918) 25 CLR 519 at 528; [1918] HCA 73 (Issacs J); Tobin v Ezekiel at [46]-[47] (Meagher JA, Basten and Campbell JJA agreeing); Battenberg v Phillips [2020] NSWCA 249 at [28] (Emmett AJA, Macfarlan and Meagher JJA agreeing); Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [185]-[188] (Leeming JA, Meagher and Payne JJA agreeing); Lim v Lim at [12] (Kirk JA, Bell CJ and Griffiths AJA agreeing); Peacock v Knox at [206], [212]-[214] (Ward P, Adamson and Ball JJA agreeing).
See [102]-[108] above.
See [113]-[122] above.
Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118 at [203]-[215] (Adamson JA, Ward P and Gleeson JA agreeing); Estate of Rofe [2021] NSWSC 257 (Rofe) at [158]-[163] (Lindsay J) and the authorities there referred to; Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [263]-[276] (Hallen AsJ, as his Honour then was) and the authorities there referred to.
Chalik v Chalik [2024] NSWSC 117 at [259]-[261] (Henry J); Rofe at [158] (Lindsay J).
[2013] NSWSC 18 (White J). In that case, the Court found that there had been no basis for a representative from the Salvation Army to convey to the deceased that her security of accommodation at her care facility was in jeopardy because her fees were unpaid.
See [40] above; Probate and Administration Act 1898 (NSW), s 74.
In her affidavit affirmed on 6 May 2025, Ms Yazdanparast deposed that Mr Smith always spoke fondly of his daughter, but that he never spoke endearingly about his son, and that the deceased never spoke of him at all other than to say that Mr Smith had a “fraught” relationship with his son and had fallen out with him to the point where they had no contact with one another. Ms Yazdanparast deposed that she heard Mr Smith describe his son as a “compulsive liar and a cheat” on one occasion, and as “extremely manipulative and selfish” on another occasion. Ms Yazdanparast also deposed that she had never once seen the plaintiff in the company of Mr Smith and the deceased, or at their home in Willoughby. In cross-examination, Ms Yazdanparast confirmed that she had never met the plaintiff until after Mr Smith passed away.
Ms Yazdanparast’s evidence did not place her conversations with Mr Smith and the deceased about the plaintiff in any particular time or context, with one exception. Ms Yazdanparast deposed to having been at a lunch with Mr Smith and the deceased at The Malaya Restaurant in the Sydney CBD in about 2010 at which Mr Smith recounted a story about the plaintiff having asked the deceased to leave him her house at Willoughby. Ms Yazdanparast deposed that the deceased confirmed that this had occurred, and that Mr Smith had said that he had “**scotched the idea immediately”.
Mr John Vasek is the son of Ms Barbara Vasek. By reason of the close friendship between his mother and the deceased, Mr Vasek came to know the deceased well. Mr Vasek has lived interstate or overseas since 1991, but made visits to Sydney about four times a year during the period from 1991 to 2004, about twice a year during the period from about 2005 to 2016, and about four times a year from 2017 until his mother passed away in May 2023. Each visit was for about a week, and Mr Vasek would catch up with his mother and, on many occasions, with the deceased and also with Mr Smith when he was alive. Mr Vasek developed a good relationship with Mr Smith, as they were both engineers and shared a common interest in rugby league.
In his affidavit sworn on 29 May 2025, Mr Vasek deposed that he recalled asking the deceased “one day” about how she had met Mr Smith and about his family. Mr Vasek deposed that the deceased replied to the effect that Mr Smith had a relationship with his daughter, but not with his son with whom he had not spoken for a very long time. The deceased said that Mr Smith had made it clear to her that he did not want the plaintiff to step foot in their home, and asked Mr Vasek not to bring the subject up with Mr Smith because he would get very upset. When asked in cross-examination about the approximate timeframe in which this conversation had occurred, Mr Vasek initially said it was a couple of years before the deceased’s falls which led to her hospital admission in 2023, so the conversation “potentially” occurred in 2021. Mr Vasek later corrected himself, saying that it had occurred at some time before Mr Smith’s death in 2016. That necessarily follows from Mr Vasek’s evidence that the deceased asked him not to raise the subject with Mr Smith. Mr Vasek was unable to say approximately how long before Mr Smith’s death the conversation occurred.
Like Ms Yazdanparast, Mr Vasek never met the plaintiff during Mr Smith’s lifetime. Indeed, Mr Vasek has still not met the plaintiff. Yet Mr Vasek deposed that he understood from the discussion that he says he recalls having with the deceased at some unspecified time before Mr Smith passed away, and without ever having asked Mr Smith about his relationship with his son, that Mr Smith and the plaintiff were permanently estranged. Ms Yazdanparast deposed that, based on the comments that she recalls hearing Mr Smith make about his son at some unspecified time, it was clear to her that they had no relationship, and that she understood that Mr Smith remained estranged from his son at the time of his death.
According to the plaintiff’s evidence, he was not estranged from or on bad terms with his father, although there was a period during which their contact was only intermittent because his father was unhappy with the plaintiff’s decision not to go into a business venture with him. The plaintiff was otherwise in contact with his father and the deceased in person and by telephone. He and his father did not always agree but they were not estranged. He and the deceased always treated one another with courtesy and respect. The plaintiff gave evidence denying that he had asked the deceased to leave the Willoughby property to him.
On 2 May 2014, H A Miedzinski Lawyers wrote to the plaintiff referring to his recent attendance at their office when he had accepted an appointment as his father’s enduring guardian and the grant of an enduring power of attorney. The letter enclosed copies of those documents. Mr Smith had appointed Mr Victor Edwards and the plaintiff as his enduring attorneys and the plaintiff and Ms Nancy Smith as his enduring guardians. Both documents were executed by Mr Smith and witnessed and certified by Mr Michael Charles, a Senior Associate of H A Miedzinski Lawyers, on 19 December 2013. The enduring power of attorney was signed by the plaintiff and Mr Edwards accepting their appointments. Mr Charles had witnessed the plaintiff’s signature accepting his appointment as an enduring guardian, in addition to witnessing Mr Smith’s execution of that document and certifying that he had executed it voluntarily and appeared to understand its effect. The letter to the plaintiff also stated that “our client” – referring to Mr Smith – had asked that the plaintiff be made aware that he had appointed him as his executor by his will dated 4 February 2014.
The plaintiff gave evidence that, at the deceased’s request, he spoke with his father and persuaded him to enter the James Milson Nursing Home after his father’s dementia had reached a stage where the deceased could no longer care for him. The plaintiff attended the nursing home together with his father for his admission interview and established his financial position to pay for his care. He visited his father at the nursing home, and recalls that the deceased visited his father regularly on Tuesdays.
The plaintiff also gave evidence that, after his father passed away, he met with the deceased daily for two weeks as they made decisions about his father’s funeral arrangements, and that the deceased sat together with the plaintiff and his wife and family members during the funeral service and attended the wake together with them afterwards. This aspect of the plaintiff’s evidence is broadly consistent with the evidence of Ms Yazdanparast, who deposed that she was unable to attend Mr Smith’s funeral as she was receiving treatment in hospital at the time, but that the deceased had told her afterwards that the plaintiff and his wife had comforted the deceased at the funeral.
Neither Ms Yazdanparast nor Mr Vasek stand to gain anything from this litigation. I accept that each of them gave evidence that they believe to be truthful. However, their evidence of conversations that they say they recall having with the deceased or Mr Smith about the plaintiff prior to Mr Smith’s death in mid-2016 and, in one instance, in 2010, is inherently unreliable due to the passage of time. [1] The unreliability of Ms Yazdanparast’s recollection is illustrated by the fact that she attributed the name “Stephanie” to Mr Smith’s daughter, whose name is Nancy. The unreliability of Mr Vasek’s evidence is illustrated by his inability to place in time the sole conversation on which he relies as informing his understanding of the relationship between Mr Smith and the plaintiff. I am not satisfied on the balance of probabilities that the conversation that Ms Yazdanparast says she recalls occurring in about 2010 at The Malaya Restaurant in fact occurred in the terms to which she deposed fifteen years later in her affidavit.
The evidence given by each of Ms Yazdanparast and Mr Vasek of their subjective understanding that Mr Smith had no relationship with the plaintiff and remained estranged from him at the time of Mr Smith’s death (in the case of Ms Yazdanparast), or that they were permanently estranged from some unspecified time prior to Mr Smith’s death (in the case of Mr Vasek), is nothing more than an impression formed on the basis of their unreliable recollections of those ancient conversations with only one party to the relationship, in circumstances where they had never even met the other party (the plaintiff). In my opinion, that evidence carries no weight and does not provide a sufficient basis to make any finding about the relationship (or lack of relationship) between the plaintiff on the one hand and Mr Smith and the deceased on the other hand, during Mr Smith’s lifetime.
I do not consider that it is necessary to make findings about the precise nature of that relationship and its ups and downs and variation in the degree and regularity of contact during Mr Smith’s lifetime. On the basis of the objective documentary evidence referred to at [23] above, I find that the plaintiff did have a relationship with Mr Smith and that the relationship was sufficiently close in the last years of Mr Smith’s life that he appointed the plaintiff as one of his enduring guardians and enduring attorneys and as the executor of his will. I find that those appointments demonstrate that Mr Smith reposed trust in the plaintiff at that time. For the reasons that I have already explained, the evidence does not provide any basis for a finding that the plaintiff had no relationship with the deceased during Mr Smith’s lifetime. The plaintiff’s evidence about his role in later arranging care for Mr Smith when he was suffering from dementia and his conduct towards the deceased at the time of Mr Smith’s death – which was not challenged in cross-examination – demonstrates that he cared for Mr Smith and the deceased and that he had a courteous and respectful relationship with the deceased, and I so find.
The will revoked all previous wills and testamentary dispositions. The deceased appointed as her executor and trustee Ms Vasek, or the plaintiff in the event that Ms Vasek predeceased her or was unable or unwilling to act. The deceased made specific gifts of jewellery to Ms Vasek and to Ms Wendy Cullen. The deceased gave the rest of her estate to her trustee on trust to be divided into seven equal shares to be held for Ms Vasek, each of the five charities named in the 6 August 2014 and 22 May 2017 wills, and the International Fund for Animal Welfare. The deceased’s execution of the will was witnessed by Mr Windeyer and Ms Carmel Scholtz of Atkinson Vinden.
The deceased appointed Ms Vasek as her enduring guardian, and the plaintiff as her alternative enduring guardian only in the event of Ms Vasek’s death, resignation or incapacity. The deceased and Ms Vasek signed the appointment of enduring guardians on 25 August 2020, and Mr Windeyer signed as witness to each of their signatures and certified that they appeared to understand the effect of the instrument and had executed it voluntarily in his presence.
Contrary to the plaintiff’s affidavit evidence that he signed the appointment of enduring guardians during his attendance at Atkinson Vinden’s office on 25 August 2020, the document records that he signed it on 14 October 2020 in the presence of Mr Windeyer who certified that the plaintiff appeared to understand the effect of the instrument and had executed it voluntarily. The evidence does not explain why the plaintiff did not sign the document on 25 August 2020.
In cross-examination, the plaintiff gave evidence that he did not know that the deceased had a longstanding relationship with the firm Atkinson Vinden, which had prepared the deceased’s previous wills. The plaintiff denied that he observed “obvious warmth and geniality” between the deceased and the representative of Atkinson Vinden to the whom the plaintiff was introduced on 25 August 2020, and denied that he knew that she had a relationship with Atkinson Vinden. There is no evidence of contemporaneous correspondence between Atkinson Vinden and the deceased that would support a finding that Mr Windeyer and others of that firm were warm and genial in their dealings with the deceased as opposed to, for example, professional and detached. Mr Windeyer swore an affidavit in these proceedings on 27 November 2024 consisting of two paragraphs in which he deposed to having witnessed the deceased’s signature of her will dated 25 August 2020, together with Ms Scholtz. Mr Windeyer’s evidence is silent about whether or to what extent he developed any rapport or warm and genial feelings towards the deceased during the years in which he had professional interactions with her. There is no evidence that would support the drawing of the inference on which this part of the cross-examination was based, that the plaintiff knew at the time he attended Atkinson Vinden’s offices with the deceased on 25 August 2020 that she already had an established relationship with that firm. I accept the plaintiff’s evidence that he did not know the history of the deceased’s relationship with Atkinson Vinden. The plaintiff had no means of knowing unless the deceased told him, and there is no evidence that would support an inference that the deceased is likely to have told him.
By December 2021, the plaintiff and his wife were battling health problems which made it difficult for him to visit the deceased for a time. The plaintiff contracted pneumonia in December 2021 and his wife was undergoing treatment for cancer between January and July 2022. The plaintiff gave evidence that he did not visit the deceased during this difficult period, but that he did maintain telephone contact.
In or about late 2022, the deceased was admitted to Royal North Shore Hospital for treatment of a bone and tissue infection emanating from an internal plate that had been inserted in her jaw to address cancer of the jaw some time earlier. The plaintiff gave evidence that it was difficult for the deceased to speak while undergoing this treatment, but he maintained indirect contact with her by telephone by speaking directly with Ms Vasek.
I accept the plaintiff’s evidence that he maintained telephone contact with the deceased throughout late 2021 and 2022 (indirectly through Ms Vasek while the deceased was undergoing treatment on her jaw in late 2022). That evidence is consistent with text messages between the plaintiff and Ms Vasek in late December 2021 and with the plaintiff making inquiries with others to track the deceased down when he was unable to reach her by phone after she was admitted to hospital in March 2023, as referred to later in these reasons.
Ms Yazdanparast gave evidence that, to her observation, the plaintiff only assumed a presence in the deceased’s life after Ms Vasek passed away in May 2023. I accept that Ms Yazdanparast gave truthful evidence about how things appeared from her perspective, but her perspective did not give her visibility of all contact between the deceased and the plaintiff. On the basis of the evidence to which I have referred at [33]-[46] above, I find on the balance of probabilities that the plaintiff did maintain contact with the deceased after the death of Mr Smith in mid-2016. His visits to the deceased in person were infrequent due to a combination of circumstances – geographical distance between the plaintiff’s home and the deceased’s home in Willoughby, the pandemic public health restrictions, and the health challenges faced by the plaintiff and his wife from about December 2021 until about mid-2022. However, their contact was sufficient for the deceased to decide to appoint the plaintiff as her alternative enduring guardian and alternative executor in August 2020. Moreover, as will be seen below, their relationship was one in which the plaintiff liaised with the deceased’s neighbour to co-ordinate their checks on her welfare when she was home briefly between hospital admissions in 2023, and liaised with the deceased’s treating doctors in hospital and advocated for the deceased’s preferences concerning her future care.
A report of an annual health assessment performed in respect of the deceased at Victoria Avenue Medical Practice on 19 December 2022 records the deceased’s medical history as including the following ailments, conditions, diagnoses and procedures:
chronic kidney disease (2012);
coronary angioplasty with stent (2018);
congestive cardiac failure (2019); and
bilateral macular degeneration (2022).
The report includes the following record of a mini mental state examination conducted as part of the assessment on 19 December 2022:
Ms Vasek passed away on the very same day that the deceased was admitted to Longueville Private Hospital. Mr Vasek visited the deceased on one occasion at Longueville Private Hospital. He gave evidence that the deceased appeared to him to be in a state of grief and to be shaken and scared because her long-time friend on whom she had relied had died.
According to Ms Yazdanparast’s evidence, the deceased told her that she thought Mr Vasek would be the logical choice to take over as her attorney and enduring guardian following Ms Vasek’s death. Mr Vasek gave evidence that the deceased did ask him whether he would take over looking after everything for her, but he told her this would not be practical given that he lived in Melbourne. The deceased then suggested that she would ask the plaintiff.
The deceased did ask the plaintiff to be her enduring guardian and attorney. On 14 and 15 May 2023, the plaintiff and Mr Vasek exchanged text messages about whether Ms Vasek’s papers included a power of attorney that the plaintiff thought he had signed when he went to see solicitors with the deceased and Ms Vasek. The plaintiff wrote: “**... I went with your Mum and Wilma to the solicitors and signed some documents– I think I’m the alternate POT [sic] in case something happened to your Mum – Wilma asked me to arrange a new POT via a solicitor – I’m not 100% sure I’m the alternate ...**”.
The plaintiff asked Mr Frank Mathey, a solicitor whom the plaintiff had previously engaged in relation to the administration of his parents’ estates, to prepare the documents necessary to give effect to the deceased’s wish to appoint him as her attorney. During cross-examination, the plaintiff was questioned about his engagement of Mr Mathey rather than Atkinson Vinden to prepare the necessary documents on behalf of the deceased. The questions proceeded on the premise that the plaintiff knew at the time that the deceased had a very long-standing and warm relationship with Atkinson Vinden. The evidence does not establish that premise for the reasons I have explained at [43] above. However, the plaintiff did know that Atkinson Vinden had acted for the deceased in August 2020, and he did not proffer any cogent reason in cross-examination for engaging Mr Mathey, who practised a considerable distance from Longueville and had acted for him in the past, rather than engaging Atkinson Vinden, who were located nearby and had acted for the deceased in the past. Nevertheless, the evidence, considered as a whole, does not establish the serious allegations put to the plaintiff in cross-examination that he engaged Mr Mathey so that Mr Mathey could facilitate the plaintiff obtaining sole control of the deceased’s affairs without any questions being asked, and to lay the groundwork for engaging Mr Mathey in the event that the deceased subsequently wanted to revisit her testamentary intentions. I accept the plaintiff’s denials of those allegations. The evidence of Ms Yazdanparast and Mr Vasek establishes that there was nobody other than the plaintiff who was willing and able to step into the role that had been performed by Ms Vasek of taking care of the deceased and her affairs. Mr Vasek expressed no misgivings when the plaintiff told him on 14 and 15 May 2023 that he was taking steps to arrange a new power of attorney at the deceased’s request.
Mr Mathey prepared an enduring power of attorney and appointment of enduring guardian appointing the plaintiff as the deceased’s attorney and enduring guardian. On 17 June 2023, Mr Mathey met with the deceased at Longueville Private Hospital, where he witnessed her execution of those documents and certified that he had explained to the deceased the effect of the power of attorney which she appeared to understand and that the deceased appeared to understand the effect of the appointment of enduring guardian. Mr Mathey also witnessed the plaintiff’s signature on the appointment of enduring guardian and on the enduring power of attorney accepting those appointments on 20 June 2023.
In his affidavit affirmed on 17 March 2025, Mr Mathey gave evidence that he assessed the deceased’s capacity at the time of her execution of the power of attorney and appointment of enduring guardian using the Capacity Toolkit provided by the Law Society of NSW and the Department of Communities and Justice, and, in his professional opinion, the deceased’s testamentary capacity was “perfectly fine”. However, in cross-examination, Mr Mathey acknowledged that he did not have the Capacity Toolkit with him when he attended on the deceased on 17 June 2023. Recanting on his affidavit evidence, Mr Mathey said that he had not assessed the deceased’s testamentary capacity at all, as she was not making a will on that occasion. Rather, he asked the deceased various questions that led him to believe that she knew the nature and effect of a power of attorney and enduring guardianship. Mr Mathey did not give any evidence of the details of his conversation with the deceased on 17 June 2023 and did not make any note of that attendance on the deceased.
On 21 June 2023, the plaintiff sent a text message to Ms Howard advising that “the Attorney papers are now signed so I can take the weight off you now” and inquiring about a spare set of keys to the deceased’s home so that a home assessment scheduled for 29 June 2023 could go ahead.
The plaintiff handled various issues relating to the deceased’s care at Longueville Private Hospital, including making payments out of the deceased’s bank account for services that she received there, arranging to collect items requested by the deceased from her home, and making preparations for what the deceased hoped would be her eventual return home. The plaintiff gave evidence that he agreed with the deceased that he would do his best to get her home, and stressed to her that she must eat all meals and participate in scheduled exercises to improve her fitness, strength and stamina in order to return home. I accept that evidence, which is consistent with the plaintiff’s subsequent conduct in advocating for the deceased to have rehabilitation services to see if she could regain sufficient strength to return home, notwithstanding his own misgivings about the deceased returning home, as referred to at [68]-[74] below.
On 27 June 2023, the deceased was transferred from Longueville Private Hospital to Royal North Shore Hospital for treatment relating to a problem with the plate in her jaw. The Longueville Hospital Acute Transfer Form records the plaintiff as the deceased’s next of kin and describes him as her stepson.
Text messages exchanged between the plaintiff and Ms Yazdanparast during this hospital admission show that they were keeping one another apprised of their visits to the deceased and her condition and exchanging information about programs that might be available to support the deceased’s needs once she was able to return home.
The deceased was discharged from Royal North Shore Hospital to home on 14 July 2023. The plaintiff was present at the deceased’s home that morning to meet her when she arrived by ambulance. The plaintiff sent a text message to Ms Howard on 13 July 2023 advising her that the deceased would be home the following day. Ms Howard replied that she would be working that day, but asked the plaintiff to “let me know how it all goes”. At 10.30am on 14 July 2023, the plaintiff sent a message replying to Ms Howard: “Ok all good – it’s 10:30 – she’s in the sunroom soaking up the sun”. Ms Howard replied that she would visit the deceased the following day. The plaintiff replied: “That would be great if you could pop in tomorrow – she has Meals on Wheels lunch and dinner meals for the weekend – I’ll see how she manages tonight with re-heating etc – let me know if there’s any issues she has when you see her tomorrow – talk soon xx”. The plaintiff gave evidence that he stayed with the deceased until she went to bed that evening to ensure that she was able to navigate around the house. I accept that evidence, which is corroborated by text messages exchanged between the plaintiff and Ms Howard that evening making arrangements for the things that they each proposed to do to assist the deceased over the coming days.
The deceased had a further fall at home on 15 July 2023. After home visits from a nurse and physiotherapist on 15 and 16 July, she was re-admitted to Royal North Shore Hospital on 17 July 2023. Text messages between the plaintiff and Ms Howard show that Ms Howard was present during the home visits and reported to the plaintiff on the deceased’s condition. Once the deceased was admitted to hospital, the plaintiff kept Ms Howard apprised of her condition and progress. The plaintiff also sent a message to Ms Yazdanparast informing her that the deceased had been re-admitted to hospital after falling and hurting her shoulder and promising to keep her informed.
Royal North Shore Hospital notes dated 19 July 2023 record issues identified by the occupational therapists as including that the deceased weighed 40 kilograms and appeared frail, that she was at high risk of falls due to her frailty and history of recurrent falls, that her vision was continuing to deteriorate making it difficult for her to continue living at home alone, and that she was unable to use the telephone due to her vision deficit which limited her ability to contact people if she needed urgent care or attention. The notes record that the deceased was resistant to being discharged to care, even on a respite basis, rather than going home. The notes are consistent with the plaintiff’s evidence that the deceased was adamant that she did not want to go to a nursing home, and that she wanted to go home. The plaintiff gave evidence in cross-examination that, in his view, the deceased was frail and was not ready to manage on her own at home at that time, and that he did not want her to go home.
The plaintiff attended a meeting at Royal North Shore Hospital together with the deceased, junior medical officers and a physiotherapist on 24 July 2023. The hospital notes of that meeting record concerns expressed by the medical team about the deceased’s ability to live at home, resistance expressed by the deceased to any suggestion of being returned to Longueville Private Hospital, and questions raised by the plaintiff about whether the deceased could have physical rehabilitation with a view to ultimately returning home. The notes record that the plaintiff “stressed to Wilma that she hasn’t looked safe”. It was agreed that options for rehabilitation or respite care would be explored for the deceased, with the medical team warning that rehabilitation facilities may not accept the deceased as a patient and encouraging her to consider respite care. The notes corroborate the plaintiff’s evidence that the deceased articulated certain requirements for any respite facility that she would consider, including a single room.
One of the junior medical officers made the following additional note:
For the reasons explained at [84]-[85] above, I accept the plaintiff’s denial of the propositions put to him in cross-examination that it was wholly unnecessary for him to raise with the deceased the possibility that her property may need to be sold to cover the cost of her future accommodation and care, and that he raised that subject with the deceased in order to upset and unsettle her. I accept the plaintiff’s evidence that he considered that he had to discuss this possibility with the deceased and that it would have been remiss of him not to do so.
The plaintiff gave evidence that, during one of his visits to the deceased after the conversation about the possibility of selling the Willoughby property, the deceased said to him: “I’m leaving you the house”. From the plaintiff’s point of view, this was unexpected as they had never discussed the deceased’s assets except in connection with the potential funding requirements for her care at Bernard Austin Lodge. The plaintiff asked the deceased if she was sure that was what she wanted, and she replied affirmatively. The plaintiff told the deceased that, in that case, she would need to sign a will. The deceased responded: “Yes”. The plaintiff asked the deceased if she would like him to make arrangements for her to engage the services of Mr Mathey, who had prepared the power of attorney and enduring guardianship. The deceased again responded: “Yes”.
The plaintiff gave the following evidence in cross-examination:
The plaintiff sent a further email to Mr Mathey on 26 September 2023 which stated:
In cross-examination, Ms Yazdanparast initially described the deceased’s condition on 12 December 2023 as a marked change compared to her condition during Ms Yazdanparast’s earlier visits to the deceased at Bernard Austin Lodge in September and November 2023. A short time later in the cross-examination, Ms Yazdanparast described the deceased’s condition on 12 December 2023 as “very similar, but worse” compared to her condition during the earlier visits, and said that she had been very unhappy and deteriorating during the whole of the period since her admission to Bernard Austin Lodge on 22 August 2023. It is difficult to reconcile that second iteration of Ms Yazdanparast’s evidence with her own contemporaneous text messages to the plaintiff referred to at [80] and [92]-[93] above. Ms Yazdanparast said that the deceased had been very upset when she had spoken to her about two weeks after she had been admitted to Bernard Austin Lodge. That evidence is wholly inconsistent with Ms Yazdanparast’s text message to the plaintiff on 5 September 2023 referred to at [80] above. For those reasons, I place no weight on Ms Yazdanparast’s evidence that the deceased had been unhappy and deteriorating during the whole of her stay at Bernard Austin Lodge. I consider that this evidence was likely affected by the belief that Ms Yazdanparast admitted to having formed after the death of the deceased that the plaintiff had received the whole of the deceased’s estate because he had isolated her at the Bernard Austin Lodge and taken advantage of her when she was reliant on him. Ms Yazdanparast’s contemporaneous communications are far more reliable evidence of the condition in which she found the deceased on each of her visits prior to 12 December 2023.
The Taronga Conservation Society Australia (Taronga) is a statutory corporation constituted under the Zoological Parks Board Act 1973 (NSW). Among other activities, Taronga operates Taronga Zoo Sydney and conducts, provides or funds a wide range of scientific research, educational services, and conservation and rehabilitation projects with respect to wildlife and habitats. During the period from 16 June 2005 to 30 March 2023, the deceased made 26 donations to Taronga, totalling $1,115. The amount of each donation varied from $30.00 to $75.00. The deceased notified Taronga in 2012 that she was leaving Taronga a bequest in her will. This bequest made the deceased eligible to join the “Friend of the Future” club within Taronga and as part of which she attended Christmas luncheons in 2014, 2015, 2016 and 2018.
The International Fund for Animal Welfare (Australia) Pty Ltd (the IFAW) is a charity registered with the ACNC, the purpose of which is to promote animal welfare in order to assist both animals and people. The IFAW has a particular focus on animal rescue and conservation. The IFAW relies heavily on donations and bequests to fund its operations. During the period from 3 August 2012 to 24 March 2023 the deceased made 49 contributions to the IFAW by way of membership fees and donations totalling $1,806. Those contributions varied from $25.00 to $80.00. In April 2019, one of the IFAW’s telemarketer representatives had a telephone conversation with the deceased during which the deceased requested information from the IFAW as to how the deceased could include IFAW in her will. The IFAW subsequently sent the requested information to the deceased via post on 15 April 2019.
Ms Yazdanparast gave evidence that, at about the time of her diagnosis with multiple sclerosis in 2013, the deceased told her that she had supported the MS Society with donations since the mid-1980s when another of her friends had been diagnosed with the disease. The deceased told her: “I am very happy to be supporting such a terrific cause and especially so now given your diagnosis”. Ms Yazdanparast also deposed that, apart from the deceased’s support of MS Plus, the deceased otherwise spoke openly of her support for various charities and how much they meant to her. As the deceased’s eyesight deteriorated, she would ask Ms Vasek or Mr Vasek to write cheques to her chosen charities.
Ms Yazdanparast also gave evidence that, after documentation appointing Ms Vasek as the deceased’s power of attorney was signed, the deceased made a joking reference to leaving her estate “to the cats and animals”. However, Ms Vasek was never appointed as the deceased’s attorney. It may be that Ms Yazdanparast was referring to the deceased’s appointment of Ms Vasek as the deceased’s enduring guardian on 25 August 2020.
Mr Vasek gave evidence that his mother would often take the deceased to events, such as Taronga Zoo lunches, which the deceased and his mother would tell him about. Mr Vasek recalled seeing his mother assist the deceased by reading her mail and drawing cheques for her to sign to charities that she wished to support. Mr Vasek himself performed these tasks for the deceased from time to time when he visited the deceased in the period after early 2023 when his mother became unwell.
Mr Vasek also gave evidence that the deceased had mentioned to him and his mother at some unspecified time during her life that she had left her estate to charities, saying words to the effect of: “I want to leave money to the charities who I’ve supported my whole life. I’ve always cared about the animals and one of my friends died of MS and that cause is very important”. Mr Vasek also gave evidence that the deceased had mentioned on many occasions that charities were important to her.
Mr Mathey did not attend on the deceased at any time in connection with the will that she executed on 12 October 2023, and so did not assess her testamentary capacity.
The evidence of the deceased’s condition while she was a resident at Bernard Austin Lodge from 22 August 2023 up to and including 12 October 2023 does not give rise to a probable inference that the deceased, who had made five wills in the past and whose discussions with the plaintiff in September 2023 confirm that she was aware that she owned a house and also had some cash (which was being depleted by the cost of her accommodation and care at Bernard Austin Lodge), lacked the capacity to understand the nature of the act of making a will and its effects and to understand the extent of her property that was the subject of the will. There is no evidence that the deceased remembered that she owned some shares which had a modest value, but that by itself does not give rise to a probable inference that the deceased lacked the requisite capacity to make the simple will that she did on 12 October 2023. [18] The plaintiff did not have a moral claim on the deceased’s estate in the sense described by Gleeson CJ in Vigolo v Bostin, [19] but there were no other potential beneficiaries with moral claims in that sense.
The weight of the evidence to which I have referred at [77]-[89], [92]-[93] and [108]-[112] above is to the effect that the deceased was alert and communicative, aware of political issues, and capable of learning to use new technology, while she was living at Bernard Austin Lodge, and that her communication and cognitive abilities began to decline at the same time as she experienced a marked decline in her physical health from about late November 2023. That evidence, considered in the context of the deceased’s considerable experience in making wills, gives rise to a probable inference that she had the capacity to make the simple will that she signed on 12 October 2023. I reject the defendants’ submissions to the contrary, which were in truth directed to the question of whether the deceased had in fact exercised sound judgment in making that will rather than whether she had the capacity to do so.
I reject that submission.
I accept that the Willoughby property was the deceased’s principal asset and that the cash and securities represented only a small fraction of the value of the total of the deceased’s assets, but the cash and securities were not an immaterial sum in comparison to the modest sum of the donations that the deceased had taken the trouble to make to the defendant charities over many years. [25] The deceased had seen fit to give either her residuary estate or a portion of her total estate to the charities in each of her previous wills. The evidence does not give rise to a probable inference that, in telling the plaintiff that she was leaving him the house, the deceased intended to leave him the house plus something more to fund the repayment of the loan secured by the reverse mortgage so that he could receive the house unencumbered.
For those reasons, the 12 October 2023 will is invalid.
(1951) 217 ALR 1
(2015) 323 ALR 639
(2023) 280 CLR 442
(2021) 105 NSWLR 487
(1952) 85 CLR 352
(1918) 25 CLR 519
(2024) 114 NSWLR 459
(1988) 14 NSWLR 698
(2012) 83 NSWLR 757
(2004) 221 CLR 191
(1995) 49 NSWLR 315
(2024) 115 NSWLR 445
(2012) 246 CLR 182
(2005) 221 CLR 191