Wild v Meduri

Background

1. The deceased was born in Italy in 1921, and married Giuseppe in 1947. They emigrated to Australia in about 1958. Despite her lengthy period of residence in Australia, the deceased spoke Calabrese, a dialect of Italian, and only limited English. She was unable to read or write in any language, and signed documents with an "X" to represent her name.
2. Connie, the deceased and Giuseppe's eldest child, was born on 10 March 1950, followed by Rose on 6 September 1952 and Tony on 6 November 1954. After the deceased and Giuseppe, along with their first three children, arrived in Australia, Dominic was born on 11 March 1961, Joseph on 2 June 1962 and John on 31 January 1967.
3. In about 1980, Dominic and his wife, Ms Karen Nash, moved to Crookwell where they lived with Karen's parents. They remained living there until early 1989. In about 1988, John and his then-partner lived in a caravan for approximately one year. John later married Ms Ruby Meduri in 2004.
4. On 16 December 1988, Giuseppe and the deceased purchased the Kemps Creek property as joint tenants for $360,000. Mr Puleo, a solicitor, was engaged to assist in the purchase. In early 1989, Dominic and his family and John and his then-partner, moved onto the Kemps Creek property where they remained living up to, and following, the deceased's passing in 2020. (In the Trust Proceedings, and putting the matter broadly for present purposes, Dominic and John claimed that both of their parents had promised them that they could live on the Kemps Creek property for their lives on condition that they pay the rates, and that they made improvements to the property on the faith on their parents' inducements.)
5. In 1991, Rose commenced her relationship with Mr Alan Wild. They were married in 1994.
6. In around 1992, the deceased and Giuseppe built their home at 7 Onyx Close, Bossley Park.
7. On 15 June 2001, Giuseppe made his last will. This will was prepared by Mr Puleo. Mr Puleo could not recall whether the deceased was present when he took instructions in relation to Giuseppe's Will. However, his evidence was that he last saw her prior to taking instructions from her in relation to the 2009 Will in about 2001. Giuseppe's Will left the entirety of his estate to his wife but, contingently, in the event that she predeceased him, he left various properties to each of his children in the same manner that, eight years later, his wife did in the 2009 Will.
8. In about 2007, Connie moved into 7 Onyx Close permanently to live with the deceased and Giuseppe and assist them with their domestic needs as Giuseppe had become unwell, although medical records from 8 March 2005 which noted that the deceased "lives w daughter - carer" suggest that Connie was caring for the deceased and Giuseppe from an earlier time. Connie continued to live with and care for the deceased following Giuseppe's death on 26 July 2009. This fact is of some relevance in light of the lively dispute as to the deceased's testamentary capacity when the 2009 Will was signed.
9. On 17 August 2009, Puleo Lawyers wrote to National Australia Bank requesting information in relation to Giuseppe's estate. Dominic, John and the deceased signed an Affidavit of Executors in the presence of Mr Puleo in relation to the grant of probate for Giuseppe's estate on 18 September 2009. On 29 September 2009, probate of Giuseppe's Will was granted to the deceased, Dominic and John.

The 2009 Will

1. On 18 September 2009, just under eight weeks after Giuseppe's death, the deceased, along with three of her children: Connie, Dominic and John, attended Mr Puleo's offices to sign the 2009 Will. The attesting witnesses to the Will were Mr Puleo and Ms Melissa Williams, who was then a secretary at Puleo Lawyers. The deceased was 87 years old at the time the 2009 Will was signed.
2. Pursuant to Giuseppe's Will, the deceased had inherited all of Giuseppe's real and personal assets. The 2009 Will was drafted and witnessed by Mr Puleo. Mr Puleo's evidence of the deceased's testamentary capacity was considered in detail by the primary judge. His Honour's use and reliance on that evidence is reflected in a number of the grounds of appeal.
3. The terms of the 2009 Will provided for Dominic and John to be executors and trustees of the deceased's estate. By cl 3, the deceased gave the Kemps Creek property, together with any machinery and equipment, to Dominic and John in equal shares as tenants in common, just as Giuseppe's Will had contingently done. By cl 4, again mirroring Giuseppe's Will, the deceased gave to her trustees (that is, Dominic and John) a property at 6 Onyx Close, in order for Joseph to have the "use, occupation and enjoyment thereof during his life." By cl 5, the deceased gave a property at 7 Onyx Close, together with its contents, to Rose and Connie in equal shares as tenants in common. This, too, mirrored the contingent provisions of Giuseppe's Will. Clause 7 similarly gave Rose and Connie the deceased's items of personal adornment and jewellery. By cl 6, the deceased gave Tony a property at 1 Rose Street, Smithfield, also mirroring Giuseppe's Will. Clause 8 provided for the residue of the estate to be paid in one-sixth shares to each of the deceased's children, with Joseph's share to be held on trust, by the trustees, "for the purposes of meeting his reasonable living and medical expenses and for any other purposes or benefit which at the discretion of [the] Trustees" may be required during Joseph's lifetime. This was different from Giuseppe's Will which contingently gave the residue of his estate to each of his surviving children living as at his death, as tenants in common in equal shares. As such it may be seen that the 2009 Will, in substance, gave properties to each of the deceased's children, with each to share equally in the residue of the estate but with bespoke arrangements for Joseph. Of course, and unsurprisingly, not all of the properties were of equal value. As has been noted, the structure of the 2009 Will broadly mirrored the contingent provisions in Giuseppe's Will in the event that the deceased predeceased him.

The hearing at first instance

1. The hearing before Hallen J commenced on 1 November 2022 and ran for 11 days in total. There was a significant amount of oral and affidavit evidence as well as expert medical evidence and medical records to which it will be necessary to return. The evidence reproduced in the appeal books extended over 2300 pages with some 1500 pages of transcript and written submissions from the trial.
2. The principal issue in the Probate Proceedings related to the deceased's capacity to make her Will in 2009. On this issue, the primary judge noted that there was "diametrically opposed lay evidence about the medical condition and mental state of the deceased": PJ [57]. The burden fell on those propounding the 2009 Will, namely Dominic and John, to satisfy the Court that it was the last will of a "free and capable" testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[48].
3. Rose contended that the 2009 Will was not validly made and therefore that the deceased died intestate. The basis for this was said to be that, at least by the time the 2009 Will was executed, the deceased had lacked testamentary capacity (although Rose's contention was that the deceased had lacked capacity as early as the 1990s). It was also put that the deceased did not know and approve of the contents of the 2009 Will. In making this case, Rose gave evidence herself, together with her husband, Alan, Tony, Kerry La Rue (Tony's former wife), Jake Meduri (Tony's son) and David Jamie DiMaria (Connie's son), in respect of whom an affidavit was read but who failed to attend to give evidence despite having been served with a subpoena to do so.
4. The Respondents' case was that the deceased did possess testamentary capacity at the time she made the 2009 Will (and continued to do so at least until the point at which she entered a nursing home in 2017), and that she knew and approved of the contents of the Will. The Respondents each gave evidence in the proceedings. They also called Mr Puleo, Ms Williams, Cathy Butera (the de facto partner of Sammy DiMaria, a son of Connie), Graham Ball (a real estate agent who acted for the deceased in 2010), Giuseppe Bonarrigo (the deceased's neighbour until she moved to a nursing home), and Emanuel Girotto (a childhood friend of Dominic).
5. Two of the deceased's treating doctors were also called to give evidence. Dr Francesco Romeo (Dr Romeo) was the deceased's general practitioner from 1999 until 2017. He speaks Calabrese, as did the deceased. Dr Mariam Doreen Joseph (Dr Joseph) did not meet the deceased until October 2014 (more than five years after the 2009 Will was executed), from which time she treated her as a geriatrician. The Court had before it contemporaneous progress notes of Dr Romeo as well as records of hospital attendances by the deceased both before and after the 2009 Will was executed. Those medical records ran to some 500 pages relating to the period between 11 July 1999 and 27 February 2020 and were obtained from the deceased's general practice, MyHealth Medical Centre in Edensor Park, five hospitals, namely Mount Druitt Hospital, Blacktown Hospital, Fairfield Hospital, Liverpool Hospital and Braeside Hospital, Dr Joseph, and two nursing homes, namely SummitCare in Smithfield and Fairfield Aged Care Home.

The primary judgment

1. At PJ [83]-[86], his Honour provided the following summary of his conclusions in respect of each of the issues in the proceedings (omitting what he said about Dominic and John's family provision claim): "The parties agreed that the most efficient way of dealing with the issues was that the Court should, first, determine the Probate proceedings and whether the 2009 Will is valid. The central questions in these proceedings are: (a) Did the deceased have testamentary capacity when she made the 2009 Will? I conclude that she did. (b) Did the deceased know and approve the contents of the 2009 Will? I conclude that she did. (c) Did the conduct of any of the beneficiaries, give rise to the application of the doctrine of suspicious circumstances? I conclude that there was no such conduct. If the 2009 Will is not valid, the Court must determine: (a) Is the Kemps Creek property held on trust for Dominic and John? I conclude that it is. … If the 2009 Will is valid, or if Dominic and John succeed in the trust claim in a way that impacts upon his claim, the Court must determine, in respect of Joseph's proceedings: (a) At the time when the Court is considering the application, has adequate provision for the proper maintenance, education or advancement in life of Joseph been made by the 2009 Will? I conclude that it has not. (b) What order for provision, if any, out of the estate of the deceased ought to be made for the maintenance or advancement in life, of Joseph, having regard to the facts known to the Court at the time the order is made? An order should be made that provides for Joseph to receive, absolutely, a lump sum out of the proceeds of sale of the property provided to him on trust in the 2009 Will."

The Probate Proceedings

1. In reaching his conclusion in relation to validity of the 2009 Will, the primary judge engaged in a thorough assessment of the lay, documentary and expert evidence, including dealing with detailed credit attacks made by both parties on various witnesses. This analysis occupied some 70 pages of the primary judgment (at PJ [368]-[685]) and was prefaced by a thorough discussion of some general principles regarding evidence: at PJ [309]-[362].
2. His Honour's credit findings are significant for the purposes of both appeals. As the primary judge observed at PJ [368], his findings in relation to individual witnesses depended, in part at least, upon his "impressions of the witness" based upon his "observation of the way he or she gave oral evidence, and upon evidence that bolsters, or impugns, his, or her, credit." Mr Owens SC, who appeared for the Appellant, squarely conceded that it would be necessary for him to meet the high bar set by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [29], namely that in order to succeed in appealing findings influenced by the credibility of witnesses, an appellant must establish that the primary judge's findings were "glaringly improbable" or "contrary to compelling inferences".
3. The circumstance is, of course, a little more complex in circumstances where an intermediate appellate court is engaged in an appeal by way of rehearing entailing a "real review" and the universe of evidence relied upon at first instance to reach a conclusion did not all depend on lay witnesses whose credit was assessed by a primary judge. Insofar, however, as assessments of the credit of various witnesses did contribute to the determination of the key question or questions confronted by a primary judge, a degree of appellate deference is due to the advantages enjoyed by the primary judge, noting, in the language of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, that: "[25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.' … [28] In particular cases incontrovertible facts or uncontested testimony will demonstrate that the primary judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings." (Footnotes omitted.)

The Trust Proceedings

1. Although his Honour stated that it was not strictly necessary to decide the issue, the primary judge held that he would have found for Dominic and John in the Trust Proceedings: at PJ [940]-[941].
2. As stated briefly at [35] above, Dominic and John's case was that the Kemps Creek property was held on trust for them, by the deceased's estate, as tenants in common in equal shares. This claim was based upon an estoppel said to arise from reliance on various promises made by the deceased and Giuseppe that Dominic and John would have beneficial ownership of the Kemps Creek property, and also from encouragement by the deceased and Giuseppe for Dominic and John to improve and renovate the property. The case, as pleaded, was that the deceased and Giuseppe promised to leave the Kemps Creek property to Dominic and John if they made the property liveable, paid outgoings on the property and agreed to not receive any other real estate owned by the deceased or Giuseppe.
3. It was not relevantly in dispute that Dominic and John moved to the Kemps Creek property in early 1989, and that they had undertaken significant renovations to the property to make it liveable to house their respective families, although there was some dispute as to the timing, extent and costs of the renovations.
4. The key promise said to give rise to the estoppel was described as the "tomato patch conversation", in which, on Dominic and John's case, Giuseppe had said to them in a tomato patch on the Kemps Creek property that Rose and Alan had taken Giuseppe and the deceased to make a will, which was said to be "very bad". Dominic and John both deposed that Giuseppe had asked them whether they would be happy to stay on the Kemps Creek property for the remainder of their lives, keep the property and get none of the other properties, knowing that the Kemps Creek property may end up of little worth. They both indicated that they agreed with that plan, and that the deceased had "nodded" at it.
5. The primary judge found that the tomato patch conversation had occurred but in 1993 or 1994 and not within a year of the Respondents moving onto the property, contrary to Dominic's evidence: at PJ [543], [975]. The primary judge further held (at PJ [976]-[977]): "Then, Giuseppe, in the presence, and with the apparent acquiescence, of the deceased, asked both of Dominic and John whether they would be happy to keep the Kemps Creek property, live there for the rest of their lives, and not receive any other properties from Giuseppe and the deceased, even if the Kemps Creek property was later taken by the government for parks. If they did so, and paid the rates for the land purchased, they would be entitled to live, with their families, on the land purchased, for the whole of their lives. Dominic and John, with his family, having moved to the Kemps Creek property, made renovations to the property, with the knowledge and acquiescence of Giuseppe and the deceased. Rose acknowledged that she knew that, in the 20 years before he died, Giuseppe and the deceased regularly visited the Kemps Creek property, and observed that Dominic and John were living there, and that they were continuously improving the houses. I am satisfied that each of Giuseppe and the deceased knew of, and had encouraged, these things." Thus, the primary judge largely accepted Dominic and John's evidence as to the tomato patch conversation.

Challenges to Factual Findings

1. The primary judge made a series of factual findings on the path to his ultimate conclusions in relation to both the Probate and Trust Proceedings. Some 15 findings were challenged by the Appellant in relation to the Probate Proceedings with a further seven challenges in relation to the Trust Proceedings.
2. Given the challenge to the whole of the primary judgment, it is first necessary to work through the 15 factual challenges in relation to the Probate Proceedings prior to turning to the grounds of appeal proper and conducting the "real review" required by s 75A of the Supreme Court Act.
3. The first, second, third and fourth factual challenges each relates in some respect to the primary judge's findings as to whether the deceased was experiencing auditory and visual hallucinations or "florid symptoms" at the point at which the 2009 Will was made. Each of the first to fourth factual challenges also turns to some degree on the content of a letter from a Consultant Physician and Geriatrician, Dr Davin Prasetyo (Dr Prasetyo), to Dr Thomas Tjeuw (Dr Tjeuw), a general practitioner who had referred the deceased to Dr Prasetyo. The letter, some three pages long, is dated 27 February 2020. Dr Prasetyo was not called. The Appellant submitted that "It is difficult to overstate the importance of Dr Prasetyo's report."

The Prasetyo Letter

1. The letter was produced by the Fairfield Aged Care Home (where the deceased lived for a period prior to her death) in response to a subpoena which was returnable on 14 October 2022, roughly two weeks before the commencement of the first instance hearing. The subpoena was issued at the request of Rose on 30 September 2022. The return of the subpoena post-dated the filing of Rose's affidavits (and those of the witnesses she called). It was adduced as an addition to exhibit NB3 on the fourth day of the hearing.
2. The first two paragraphs of the letter are necessary to reproduce in full: "Thank you for referring Elisabetta for comprehensive assessment and management. She is a 98 years old female and she was born in Italy. She has migrated to Australia around 45 years ago. She used to be a farmer and she has no formal education. According to Dominic, her son, she has no hobby. Today I have seen her in Fairfield Nursing Home. She has a significant family history of mental health disorder. Her sister, brother, children had been diagnosed with schizophrenia. According to Dominic, she started to have hallucination, auditory and visual hallucination, around 15 years ago. She sees people on trees, she hears birds calling her and her husband. She also has become paranoid thinking that her husband had an affair with her neighbour." (Emphasis added.)
3. The rest of the letter continues in a detailed fashion, recounting extensive discussions with Dominic about the deceased's health and medical history, as well as with the nursing staff at the Fairfield Aged Care Home. It also records advice that Dr Prasetyo gave to Dominic.
4. Dominic was cross examined in relation to the letter. Before discussion of the letter itself, he denied ever having observed his mother having hallucinations as early as 2005, saying "Absolutely not" in response to the suggestion of such observations. He similarly denied, in strong terms, having any recollection of Dr Prasetyo or Dr Tjeuw. After being shown the letter, he continued to deny knowing who Dr Prasetyo was or having spoken to him about his mother's medical history or condition in early 2020. Dominic maintained this denial in strong terms: "Yeah, I don't recall that. I don't recall that conversation. I don't recall anything about that. … I don't recall that. It's, it's all news to me, I don't recall it."

First factual challenge

1. The first factual challenge was to the primary judge's finding at PJ [57] that "[t]here were no contemporaneous records that could be used to determine whose account of events at various times was to be believed" (emphasis added).
2. The Appellant contended that the deceased's medical records corroborated the evidence filed by Rose and her witnesses. In particular, the Appellant pointed to the Prasetyo letter as supporting Rose's contention that the deceased was experiencing florid symptoms "15 years ago" in around 2005. She also relied on the following passage in a note written by Dr Joseph to Dr Romeo on 20 October 2014 after reviewing the deceased, who was brought in by Connie: "She has had short-term memory impairment, which was noticed over the last seven years and has had some impairment with the long-term memory as well… Her husband passed away six years ago and this is when the decline was noticed then. She has had on and off confusion."
3. The Respondents submitted that neither Dr Prasetyo's letter nor Dr Joseph's note could be characterised as primary records "corroborating" that the deceased was experiencing florid symptoms at the time she created the 2009 Will. Rather, it was put that those documents merely captured the deceased's medical history as reported by someone else on behalf of the deceased many years after the reported events and in a manner uncorroborated by the contemporaneous medical records.
4. In relation to Dr Joseph's note, the Respondents also submitted that there was some discord between Dr Joseph's record that the deceased's memory impairment was "noticed over the last seven years" and her record that "the decline" was noticed "six years ago". Ms Needham SC, who appeared for the Respondents on appeal and at first instance, also drew attention to the fact that the reference to "seven years" appeared to be confined to a "short-term memory impairment".
5. On the Respondents' case, the first medical records which corroborated the presence of the deceased's delusionary symptoms were from 2010. In particular, Dr Romeo's medical notes from 14 December 2010 recorded that: "Patient says that she hear [sic.] people callinng [sic.] her name and the name of her husband , and she sees people 'doing things'. She answer [sic.] back and shout [sic.] at them. Recent fall, right shoulddr [sic.] and buttock pain (auditory and visual allucination [sic.]" Dr Romeo diagnosed the deceased with schizophrenia and prescribed an anti-psychotic medication. However, the joint experts' report recorded that Associate Professor Ryan's view was that this diagnosis was likely incorrect.

Second factual challenge

1. The second factual challenge was to the finding of the primary judge at PJ [855(13)] that: "Rose suggested that from 2005, the deceased suffered from 'auditory and visual hallucination [sic.]. She sees people on trees, she hears birds calling her and her husband. She also has become paranoid thinking that her husband had an affair with her neighbour', each of the joint experts was unable to find any reference to any of these things until 2014: Tcpt, 7 December 2022, p 791(8-45)." (Emphasis added.) The Appellant contended that the primary judge ought to have found that Dominic (not Rose) reported that the deceased was suffering from hallucinations from 2005.
2. In making the finding at PJ [855(13)], the primary judge did not make any reference in terms to the Prasetyo letter however the language of this paragraph (other than the reference to Rose) does correspond to that letter. If the primary judge was referring to the letter, as I think he must have been, he misattributed to Rose, rather than Dominic, the suggestion that the deceased suffered hallucinations from 2005.
3. The Respondents submitted that the timeline of the deceased's cognitive decline recorded in the Prasetyo letter should not be given any weight because there is no contemporaneous support for it and, as already foreshadowed, this was a view adopted by the experts who gave the following evidence: "WITNESS RYAN: Well, I suppose surprisingly it's sort of right because it's such an unexpected data point really that now I really don't know how to put that into the context of everything else. One possibility is that the dementia was coming on much earlier than we thought, and it was much more severe, or there was delirium at various times. I just don't know that I've got enough - … my conclusion would be really that that's what Dr Prasetyo was told that that wasn't accurate. That's what I - would be the most likely thing. If it was accurate, as you're assuming, I'm just going to have to scrub the whole thing out and have a look [at] it again from scratch, because that wasn't supposed to happen. … HIS HONOUR: Dr Ryan and Professor Watson, did either of you see anything in the medical records that you observed that would support the proposition that what is recorded in the note that Mr Condon has taken you to in the medical records contemporaneously made? WITNESS RYAN: No. WITNESS WATSON: … I think there are references in some of the medical records to an earlier date, whether it's around that time, for some of these complaints or observations. The other tantalising thing … that we do know that the nearest we had to a professional assessment of this lady and the nearest to 2009 was a psychogeriatric registrar - HIS HONOUR: But that's five years later. WITNESS WATSON: Yes, but that's still getting six years closer to the event, so if - that is six years closer to this apparent start date of 2005. We've not had the benefit of that document and if, for example, that document recorded a similar history from other informants that would add strength, but we haven't seem to have been given that document." … WITNESS RYAN: … She could have had a stroke in 2004/5. As a part of that she becomes delirious. As part of the delirium, she gets visual and auditory hallucinations, which are there for a brief period and then go away and that's what Dominic is reporting and that's what Dr Prasetyo has reported… But, I mean, that's drawing a long bow, actually, from that one sentence. WITNESS WATSON: And potentially if I can - could come and go with the things you've already referred to, like, urinary tract infections." (Emphasis added)

Third factual challenge

1. The Appellant challenged the primary judge's finding at PJ [857] that: "Whilst not completely lacking in the references referred to above, before the deceased signed the 2009 Will, there is very little which supports the evidence given by Rose and other of her witnesses, of the florid symptoms from which each said the deceased had suffered well before August and September 2009." (Emphasis added.)
2. The Appellant's table of challenged findings unhelpfully omitted the opening italicised words of this sentence. Also unhelpfully, five of the seven references which the Appellant supplied in that table as supporting the alternative finding contended for were from the evidence of Rose or other witnesses called by her. These references did not undermine the complained of statement by the primary judge as his observation was expressly made by reference to there being little to "support the evidence given by Rose and other of her witnesses". The primary judge's observation was correct and the factual challenge should be dismissed.

Fourth factual challenge

1. The fourth factual challenge was to the primary judge's finding (at PJ [770], [786], [798], [837] and [857]) that if the deceased's "florid symptoms" had been mentioned to Dr Romeo, or if he had observed them himself, then they would have appeared in his progress notes relating to the deceased.
2. The Appellant submitted that the appropriate finding was that Dr Romeo's notetaking was deficient, and his notes did not comprehensively record the deceased's medical conditions.
3. At PJ [836]-[838], the primary judge said the following in relation to the absence of any notes by Dr Romeo in relation to the existence of any "florid symptoms" in 2010: "Whilst Dr Romeo did not conduct any formal, or it would appear less formal, cognitive assessment of the deceased during the years that he was involved in her medical care, it is difficult to accept the submission, by Rose, that this was because he did not appreciate her mental condition. Another available explanation is that neither the deceased, nor any other of her family members who had attended with her upon Dr Romeo had raised, when the deceased attended upon Dr Romeo, the florid symptoms that were stated by Rose and others, in the Probate proceedings. It is somewhat implausible to think that none of those symptoms would have been included in the clinical notes if one, or other, of them had been disclosed to even a busy treating general medical practitioner or if he had observed those florid symptoms himself. I am satisfied that, in giving his evidence, Dr Romeo was doing the best that he could to recollect the deceased and to state his opinion about her medical condition. He accepted that much detail had been lost from his memory due to the passage of time and the number of patients he had seen since 2009: Tcpt, 2 November 2022, p 187(23-29); 191(13-14); 193(49)-194(2); 196(41)-197(21). His evidence cannot be discounted completely, as it forms part of the mosaic of facts which must be considered in reaching the conclusion about the deceased's testamentary capacity."
4. In support of the factual finding contended for by the Appellant, reference was made to the fact that the joint experts had been critical of Dr Romeo's notetaking. When being cross examined as to the deceased's cerebrovascular accidents (CVAs) in the early 2000s, Professor Watson gave evidence that Dr Romeo's notetaking was "scant". In his expert report, Professor Watson commented that: "The contemporaneous medical notes, in my opinion, are insufficient (and on some plausible views deficient) to help answer with much certainty on a contemporaneous basis what Mrs Meduri's mental state would have been at the time of the September 2009 Will making. As noted above the nearest we have to this date are Dr Romeo's consultations and prescriptions with their scant notes on either side of the Will making - in my opinion these consultations do give rise to significant concern about Mrs Meduri having significant cognitive dysfunction… One of the problems in this case is that we do not have an adequate assessment of Mrs Meduri's cognition at the very time of the 2009 Will making. However, as pointed out in my review of Dr Romeo's assessments in the Appendix below before the will making in 2009 (with his notes completely silent as to her husband's recent death) he did mention tiredness and poor hearing; then on 28 July 2009 he prescribed the major psychotic medication Serenance; he described her in late August 2009 as having low mood and suffering from back pain, about a month after had prescribed the major antipsychotic Serenance … Even closer to the relevant date there was a consultation on 1 September 2009, but nothing useful was recorded, only that this was a follow-up for the results of tests."

Fifth to seventh factual challenge

1. The fifth, sixth and seventh factual challenges each turned on factual findings made by the primary judge in relation to aspects of Mr Puleo's evidence as to his meetings with the deceased in relation to the 2009 Will and the instructions she gave.

Fifth factual challenge

1. This challenge was to the primary judge's finding (at, amongst other places, PJ [245]) that the deceased and Mr Puleo met to obtain her instructions for a will on a separate occasion prior to the execution of the 2009 Will on 18 September 2009. In the Appellant's submission, there was insufficient evidence to establish that this meeting occurred.
2. This challenge needs to be understood in the context where, in an early affidavit, Mr Puleo suggested that the taking of instructions in relation to and execution of the Will all occurred on one day. The primary judge dealt with this matter at PJ [395]-[397]: "It is clear, however, that some of Mr Puleo's evidence about the sequence of events in 2009 involving the deceased was wrong. He wrote, in his first affidavit, about the taking of the instructions for a Will and its drafting, and then the execution of the 2009 Will, on the same day. His evidence in this regard was in error, a matter he acknowledged: Tcpt, 2 November 2022, p 118(18)-119(24). In fact, some weeks passed between the first and second conferences, during which time Mr Puleo had no contact, by telephone, or otherwise, with the deceased. After the making of his first affidavit, the file note dated 31 August 2009 was produced. This file note makes clear that Mr Puleo took instructions from the deceased prior to that date. She returned on 18 September 2009 to have the 2009 Will read to her, signed, and witnessed. He wrote that this would 'certainly be in keeping with my normal approach to taking instructions and having a will signed and witnessed on different days'. Whilst the evidence about the date of his first conference with the deceased was imprecise, it was clear, by the conclusion of the hearing, that it had occurred on about 18 August 2009. There is no dispute that another meeting had occurred on 18 September 2009, which was the date of the execution of several documents, including the Summons for Probate (filed on 23 September 2009), and an affidavit of executors made on 18 September 2009 and also the date on which the 2009 Will was executed."
3. His Honour's conclusion plainly entailed an acceptance of Mr Puleo's evidence of his "normal approach", referred to at the conclusion of PJ [396]. Earlier, at PJ [384], the primary judge held: "It was clear, from his evidence, overall, that even in 2009, Mr Puleo had over 30 years' experience as a solicitor drafting wills. His evidence as to his usual practice demonstrated an understanding of the test in Banks v Goodfellow (1870) LR 5 QB 549. He gave specific evidence that he discussed with the deceased the persons who had a claim on her bounty, and the extent of her estate: Affidavit, John Puleo, 21 June 2021 at pars 18-19."

Sixth factual challenge

1. The sixth factual challenge was to the primary judge's finding (at PJ [384]) that Mr Puleo gave "specific evidence that he discussed with the deceased the persons who had a claim on her bounty, and the extent of her estate".
2. The Appellant's contention was that Mr Puleo could not recall the questions he asked the deceased.
3. That Mr Puleo (unsurprisingly) could not recall the questions he asked the deceased did not negative the challenged finding of the primary judge. As the passages set out above in relation to the fifth factual challenge make clear, Mr Puleo did give evidence of the kind described at PJ [384]. Moreover, the primary judge was in the best position, and certainly a vastly superior position than this Court, to assess the credibility of Mr Puleo's recall. The primary judge found Mr Puleo, "[h]aving seen him in the witness box", to be a "fundamentally honest witness" who did not "exaggerate, or play down, facts to suit a particular narrative or agenda": at PJ [451]-[452].
4. The sixth factual challenge should be rejected.

Seventh factual challenge

1. The seventh factual challenge was to the primary judge's finding at PJ [384] (reproduced at [119] above) and [394] that Mr Puleo discussed the extent of the deceased's estate with her. In PJ [394], his Honour relevantly observed that "[i]n complying with his obligations, as a lawyer, it would have been necessary to discuss with her the property that she owned as well as the property that she would receive by survivorship, or pursuant to the terms of Giuseppe's Will."
2. The finding challenged was based upon the evidence of Mr Puleo's usual practice as well as Mr Puleo's evidence, which the primary judge accepted.
3. The finding contended for by the Appellant was that "Mr Puleo identified the relevant properties based on the title deeds held by him." There was no issue as to whether Mr Puleo had the deeds. He indicated this when under cross examination. His evidence was that: "My recollection was that we discussed the properties, the assets that needed to be identified to be included in the probate application. I explained the process. I had the deeds and they told me there was a bank account, somebody told me there was a bank account, I don't know who, and we needed to write to the bank to identify that account." It is also to be noted that, prior to the execution of the 2009 Will, the deceased executed an Affidavit of Executors annexing an Inventory of Property which listed the properties which she inherited from Giuseppe. That affidavit contained the following notation by Mr Puleo: "The Deponent not being able to read or speak English or to sign her name on this Affidavit was read to the Deponent into the Italian language (being the customary language understood by her) in the presence of John Puleo who then informed John Puleo that she knew and approved the contents whereupon the Affidavit was signed by her with her mark in the presence of John Puleo."
4. As with the sixth challenge, there is no necessary or obvious inconsistency between the challenged finding made by the primary judge and the finding contended for by the Appellant. In any event, the primary judge's acceptance of Mr Puleo's evidence was in part based on his long experience, including in the preparation of wills, and the advantages enjoyed by the primary judge in observing Mr Puleo give his evidence.
5. The seventh factual challenge should be rejected.

Eighth and ninth factual challenges

1. The eighth and ninth factual challenges were to the primary judge's findings (at PJ [415], [882(1)], [908], [915] and [929]) that the deceased sought to include a gift of jewellery to her daughters in her Will which was not included in Giuseppe's Will and gave instructions accordingly.
2. This challenge is sustained and was accepted by the Respondents, although the acceptance of this does not mean that the deceased did not give the relevant instructions in relation to the 2009 Will.
3. Clause 11 of Giuseppe's Will provided that: "I GIVE all items of personal adornment and jewellery to my daughters the said ROSA WILD and CONNIE DIMARIA" (Emphasis in original.)
4. Clause 7 of the 2009 Will provided that: "I GIVE all items of personal adornment and jewellery to my daughters the said ROSA WILD and CONNIE DIMARIA in equal shares." (Emphasis added.)
5. It may be noted that the addition of the words "in equal shares" in the 2009 Will meant that it could not be said that cl 7 was simply copied from Giuseppe's Will. However, the Respondents conceded that the gift of jewellery was a matter included in Giuseppe's Will. Nonetheless, it was argued that the primary judge's finding to the contrary was insufficient to vitiate his Honour's findings as to testamentary capacity. The Respondents submitted that the similarity between the wills of Giuseppe and the deceased was consistent with the deceased's instructions that she would like a will reflecting their shared testamentary intentions and was not indicative of her having lacked testamentary capacity.
6. In any event, the Respondents submitted that the deceased had made a more significant change to her will when compared with Giuseppe's Will, namely the creation of a trust of residue for Joseph by way of cl 8(f). The Appellant submitted that Mr Puleo's evidence was only that the deceased wanted Joseph to be provided for such that the fact that the residue share was held on trust, rather than gifted outright, could not shed any light on the deceased's testamentary capacity.
7. The significance of the primary judge's conceded error is considered more fully in the context of consideration of the grounds of appeal, noting that the primary judge undoubtedly attributed some significance to his mistaken finding that the jewellery was not bequeathed in Giuseppe's Will: see PJ [882(1)] reproduced at [58] above.

Tenth factual challenge

1. The tenth factual challenge was to the primary judge's finding (at PJ [382], [386], [411] and [580]) that the "deceased did not have any difficulty understanding or communicating with Mr Puleo." The precise finding at PJ [382] was that "Mr Puleo concluded that the deceased did not have any difficulty understanding him" (emphasis added).
2. The Appellant submitted that the preferred finding of the Court would be that the "deceased spoke Calabrese whilst Mr Puleo spoke Sicilian." There was no expert evidence led in the case about the extent of differences between the Calabrese and Sicilian dialects.
3. By way of an affidavit sworn on 20 October 2020, Mr Puleo deposed to the following: "I was born in Sicily in 1949 and came to Australia with my mother in January 1951. My parents didn't speak English so I grew up speaking Italian at home and learnt English outside. My parents were Sicilian and we spoke the Sicilian dialect at home. Notwithstanding this I have always been able to converse in spoken Italian with people from Calabria and other parts of Italy."
4. The Appellant accepted that, although the dialects were "mutually intelligible", they were not the same and submitted that this added an "additional level of challenge in relation to the communication". To this effect, she pointed to the following evidence of Dr Romeo: "I will speak just in Calabria sometime, just say, if I use a word that she doesn't understand, not in Calabrian because I use Italian words and then calling just to tell just her just was it so she would understand…"
5. Mr Puleo gave evidence, accepted by the primary judge, that he could communicate with the deceased and Giuseppe, who spoke the Calabrian dialect.
6. It was also submitted, and accepted by the primary judge, that Mr Puleo had been able to communicate with the deceased and her husband over an extended period of time and that they were able to understand one another, despite any differences between their native Sicilian and Calabrese dialects. Mr Puleo gave the following evidence under cross examination as to the differences between the dialects: "Q You don't speak and in 2009 you did not speak the Calabrese dialect, is that right? A. That's correct. Q. Is it fair to say that you speak Orthodox Italian? A. It's Sicilian dialect. Q. In what way is Calabrese different from the Sicilian dialect, which is your first language as it were? A. Just some inflection, different inflections on words. Q. Sometimes different words altogether? A. No, it's just the way they're pronounced, that's all. Q. But is it your understanding that in terms of pronunciation there are some distinctive words in Calabrese which you don't find in Sicilian and vice versa? A. Yes. … Q. Do you accept that if there are some differences between Calabrese and Sicilian, it would have been better for you to have an interpreter present at the time? A. No, bearing in mind that I'd been dealing with the family since 1988. Q. You spoke to Giuseppe in English did you not? A. No, I spoke to him in Italian as well [as] Sicilian."

Eleventh factual challenge

1. The eleventh factual challenge was to the primary judge's finding (at PJ [393]) that "Mr Puleo was in a good position to assess [the deceased's] capacity 'as she was not a complete stranger to him'." Again, the terms of the challenge are based upon an incomplete quotation of what the judge actually said at PJ [393]. The challenged finding was prefaced by the words: "Even though he had not seen the deceased for eight years, at the time he first obtained instructions to prepare her Will, …" In other words, the primary judge was cognisant of the evidence as to the last time Mr Puleo saw the deceased and took that into account in making his finding. That finding was also qualified by the words "as she was not a complete stranger to him".
2. Mr Puleo's evidence was that "Mrs Meduri was no stranger" and that he "didn't notice any change from when [he] saw her last time" eight years prior. He also gave evidence that he had been "dealing with the family since 1988".
3. Taking these matters into account, there is no cogent basis for the challenge to this finding.

Twelfth factual challenge

1. The Appellant challenged what was characterised as the primary judge's finding at PJ [912] that "Mr Puleo would have detected cognitive impairment if any were present in the deceased."
2. At PJ [912], the primary judge held that: "I have borne in mind that both experts consider that lay people often miss even quite severe cognitive impairment, and that it was possible that an experienced lawyer would not necessarily gauge the severity of the deceased's condition. However, I am satisfied that, with his experience, Mr Puleo was especially aware of what he should be looking for, and was satisfied, having taken instructions from the deceased, that she had capacity. At the times he took the instructions for, explained, and witnessed the execution of the 2009 Will, he was well aware of the Law Society of New South Wales guidelines concerning clients whose testamentary capacity was, or may be, in doubt." (Emphasis added.)
3. The Appellant submitted that, consistent with her general complaint under ground 3 of the appeal that the evidence of the joint experts was given insufficient weight, the view of the joint experts should have been adopted resulting in a finding that "even an experienced lawyer [like Mr Puleo] may have had real difficulty detecting the severity of [the deceased's] cognitive impairment just from talking to [her]." Mr Owens argued that it is "difficult … to attribute generally to a class of professional, ie, a solicitor experienced in making wills, some general ability to detect cognitive impairment" without an understanding of "what their training was, what their client make-up was, what they'd seen in the past [and] what they'd learnt about those clients."
4. In support of this factual challenge, the Appellant relied on the following evidence of the joint experts but, on analysis and on balance, it tends to support, rather than undermine, the primary judge's challenged finding: "WITNESS RYAN: I will say that lay people often miss even quite severe cognitive impairment, but I think the details around an experienced solicitor's ability to do that are probably outside my area of expertise. … WITNESS WATSON: … I would answer very much the same, it's notorious. For many years I was the head of the clinical neuropsychology unit at Prince Alfred Hospital … and … very frequently we would see people brought in by others who knew them well and with professionals who had referred them. You know and when put to the test properly with neuropsychology … you'd end up with a dreadful profile, suggesting a far worse condition than anyone had thought, and that's because most, most of what we do is habitual. Much of our conversation is social and banal. So that's the general answer. I'm surprised that an experienced lawyer would miss it entirely. But I wouldn't be surprised if an experienced lawyer would not necessarily gauge the severity for what it … was." (Emphasis added.)

Thirteenth factual challenge

1. The thirteenth factual challenge was to the primary judge's finding (at PJ [619] and [621]) that "Dominic did not intend to dissuade or deter Jake from giving evidence in the proceedings by threatening him." The Appellant submitted that the primary judge ought to have found to the contrary.
2. As noted at PJ [607]-[608], Dominic was convicted on 1 June 2021 in the Local Court for an offence of stalking and intimidation with intention to cause fear of physical or mental harm in relation to an interaction with Jake which occurred on 8 November 2020. His appeal to the District Court was dismissed on 13 August 2021. The primary judge held the following in relation to those events: "[617] The even more serious submission about Dominic relates to the incident involving Jake which led to Dominic being charged with, and found guilty of, the offence of stalking and intimidation. The facts founding the conviction were said to involve Dominic driving to Jake's home and yelling at him (in the presence of Dominic's brother and Jake's father, Tony) 'Fuck you, dog. You're dead'. The incident was said to have occurred on 8 November 2020. [618] It was submitted that what had occurred 'was an unlawful attempt by Dominic to intimidate a witness. The Court can draw the inference that Dominic sought to discourage Jake from giving evidence and that he did so out of an appreciation that his application for probate of the 2009 Will lacked foundation'. [619] I accept that the words that were asserted to have been said were threatening. However, I also accept that whatever was said, it had not been Dominic's intention that Jake would thereby be dissuaded, or deterred, from giving evidence, or truthful evidence. In this regard, I accept Dominic's denial that he 'went to Eleventh Avenue, Austral with a view to intimidating Jake so he wouldn't give evidence in this court case': Tcpt, 3 November 2022, p 219(26-28). [620] In Gregory v Phillip Morris Ltd (1987) 74 ALR 300, Gray J, at 308, after reviewing the authorities, concluded that there must be some intention to dissuade the potential witness from giving evidence at all, or from giving truthful evidence, although the requirement of intention 'may perhaps be satisfied by reckless disregard of the likely effect of such a threat'. [621] I tend to the view, accepting the words complained of were said, that it was not an attempt to intimidate Jake from giving evidence, which attempt, in any event, failed, but rather a chance encounter between Dominic and Jake, with words being spoken spontaneously, and without any significant premeditation. I consider it more likely bearing in mind the family dynamics, that emotion and anger overtook Dominic."

Fourteenth factual challenge

1. The fourteenth factual challenge was to what was said to be the primary judge's finding (at PJ [824]) that "Dr Romeo decided to refer the deceased to Dr Joseph in 2014 as he felt he was unable to assist the deceased on his own." It is not at all clear that this was a finding by the primary judge so much as simply an account of Dr Romeo's evidence - the sentence from which the impugned "finding" is taken commences with the words "Dr Romeo recalled …"
2. In any event, the materiality of this matter is peripheral at best. This is confirmed by the finding contended for by the Appellant, namely that Dr Romeo only referred patients for assessment who were a danger to themselves or others, or where the patient or their family specifically requested an assessment, and that Fairfield Hospital requested that Dr Romeo arrange the assessment with Dr Joseph.
3. This challenge should be rejected on the basis that it misstated the judgment insofar as what was presented was a finding by the judge rather than an account of Dr Romeo's recollection. Its relevance to the matters in dispute was also exiguous, at best.

Fifteenth factual challenge

1. The fifteenth factual challenge was to what was said to be the primary judge's finding (at PJ [909], [915], [926] and [928]) that "the deceased had a long-held pattern of testamentary intentions." The Appellant submitted that the primary judge ought to have instead found that "the deceased had never made a Will prior to 18 September 2009."
2. The closest the primary judge came to making a finding of the kind stated in the Appellant's table of factual challenges was at PJ [909] where what was said was that: "The 2009 Will did not depart from the patter of testamentary intentions that had existed as between the deceased and Giuseppe; the residue clause divided the residuary estate equally between the deceased's six children."
3. His Honour's clear purpose in making this statement was that there was a broad consistency between the 2009 Will and Giuseppe's Will. That was correct and it would be surprising if a husband and wife who had been married for such a long time with many children did not share a common testamentary disposition.
4. The deceased knew the terms of Giuseppe's Will, having been an executor of that will, had participated in discussions about its terms and the Kemps Creek property, including during the tomato patch conversation (see [64] above), had repeated her intention with regards to the Kemps Creek property on numerous occasions, and had expressed her intention that her will be the same as Giuseppe's to Mr Puleo. Ms Needham submitted that it was "completely within the course of human experience that a person who had been married for 61 years and knew the terms of her husband's will" would be able to express to a solicitor that she wished for her will to reflect those terms.
5. The challenge to the innocuous statement by the primary judge should be rejected. Properly understood, it contained no error requiring its rejection.

Grounds of Appeal - Probate Proceedings

1. By Amended Notice of Appeal, the Appellant propounded seven grounds of appeal in the Probate Proceedings: "1 The trial judge erred in finding that the late Elisabetta Meduri ('the deceased') had testamentary capacity when she made the Will dated 18 September 2009 ('2009 Will'). 2 The trial judge erred in finding that the deceased knew and approved the contents of the 2009 Will. 3 The errors in the trial judge's findings the subject of Grounds 1 and 2 above were caused, or contributed to, by his Honour: a) failing to give sufficient weight to the expert medical evidence of Professor John Watson AM (Neurologist) and Clinical Associate Professor Christopher Ryan (Psychiatrist), who were both jointly instructed by the appellant and the first and second respondents; b) failing to give sufficient weight to the evidence of: i. Dr Mariam Joseph ii. The appellant iii. Alan Wild iv. Anthony Meduri v. Jake Meduri vi. Kerry La Rue vii. David Di Maria; c) giving excessive weight to the evidence of: i. John Puleo ii. Dr Francesco Romeo iii. The first respondent iv. The second respondent v. Graham Ball vi. Cathy Butera vii. Giuseppe Bonarrigo viii. Emanuel Dante Girotto; and, as a consequence, his Honour failed to make the findings of material fact specified below. 4 Further to Ground 3(c) above, the trial judge erred in his evaluation of the evidence of Mr Puleo and each of the first and second respondents' witnesses by: a) failing to find that the involvement of Mr Puleo in representing the first and second respondents in contested litigation, and in the preparation of the evidence filed on behalf of the first and second respondents (in circumstances where it was correctly found by the primary judge that Mr Puleo should not have acted for the first and second respondents), materially compromised the reliability of the evidence given by each of the first and second respondents and their witnesses; and b) holding that before the conduct of Mr Puleo could be a relevant factor in the assessment of the evidence of the first and second respondents and their witnesses, it was necessary for the appellant to show that Mr Puleo's conduct had 'prejudiced the administration of justice' or 'resulted in a miscarriage of justice'. 5 Further to Ground 3 above, the errors in the trial judge's findings the subject of Grounds 1 and 2 above, were caused, or contributed to, by his Honour's wrongful rejection of evidence given by David Di Maria on the basis that it was unclear what period of time the evidence related to. [Tcpt, 10 November 2022, p 577(13)-578(27)] 6 Further to Ground 3 above, the errors in the trial judge's findings the subject of Grounds 1 and 2 above were caused, or contributed to, by his Honour's failure to draw an inference in accordance with Jones v Dunkel against the first and second respondents by reason of their failure to call evidence from Connie Di Maria (the deceased's full-time carer at the time the 2009 Will was made). 7 [Not pressed] 7A Further, or in the alternative, the trial judge erred in his exercise of discretion in determining the question of costs by ordering that: a) the appellant bear her own costs of the proceedings; b) the appellant pay 85% of the first and second respondents' costs, calculated on the ordinary basis, of the proceedings; and c) the difference between the first and second respondents' costs calculated on the ordinary basis and their costs calculated on the indemnity basis, be borne proportionately by the assets specifically disposed of in clauses 3, 5 and 6 of the 2009 Will. In the event that the orders made by the trial judge in the principal judgment are not overturned on appeal, the trial judge should have found that: i) there was a reasonable case for investigation in relation to the 2009 Will such that the appellant is not ordered to pay the first and second respondents' costs of the proceedings; ii) the appellant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased in relation to: A. the assistance she provided to the interim administrator, the third respondent; B. the costs associated with the instruction of the joint experts; and C. the costs associated with preparing the various Court Books; iii) the first and second respondents pay the appellant's costs associated with the evidence of Connie di Maria that was not read at the hearing, including evidence in reply to such evidence, on the indemnity basis; iv) otherwise, no order as to the appellant's costs, to the intent that she will bear her own costs; and v) the first and second respondents' costs of the proceedings (excluding their costs associated with any evidence of Connie di Maria), calculated on the ordinary basis, be paid out of the estate of the deceased."

Consideration

1. The manner in which the Amended Notice of Appeal was drafted, the wholesale nature of the challenges to the primary judge's reasoning and the extensive detail and lines of attack relied upon, have made the preparation of these reasons for judgment difficult and dictated their length. Grounds 1 and 2 were expressed at a high level of generality. Underpinning grounds 3 and 4 were many discrete challenges to the primary judge's assessments of the evidence of numerous lay witnesses.
2. Even though it was accepted that Fox v Percy required the Appellant to establish that the primary judge's findings were "glaringly improbable" or "contrary to compelling inferences", the Appellant sought to rise to this forensic challenge with tightly argued attacks on particular findings made by the primary judge.
3. Before turning to grounds 1-3, it is convenient to deal with the discrete grounds of appeal relating to Mr Puleo (ground 4), David DiMaria (ground 5) and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) and the failure to call Connie (ground 6). The question of costs raised by ground 7A is dealt with at [268] ff below.

Ground 4 - Mr Puleo

1. Ground 4 of the appeal was in these terms: "Further to Ground 3(c) above, the trial judge erred in his evaluation of the evidence of Mr Puleo and each of the first and second respondents' witnesses by: (a) failing to find that the involvement of Mr Puleo in representing the first and second respondents in contested litigation, and in the preparation of the evidence filed on behalf of the first and second respondents (in circumstances where it was correctly found by the primary judge that Mr Puleo should not have acted for the first and second respondents), materially compromised the reliability of the evidence given by each of the first and second respondents and their witnesses; and (b) holding that before the conduct of Mr Puleo could be a relevant factor in the assessment of the evidence of the first and second respondents and their witnesses, it was necessary for the appellant to show that Mr Puleo's conduct had 'prejudiced the administration of justice' or 'resulted in a miscarriage of justice'."
2. Mr Puleo acted for the Respondents in the contested proceedings from about 24 August 2020 until 29 July 2021 when his son, Mr Puleo Jnr, took over as the solicitor on record for the Respondents. Ms Anthea McIntyre, the Appellant's solicitor, wrote to Mr Puleo on 13 October 2020 requesting that he cease to act for the Respondents on the basis that Mr Puleo had been the solicitor who prepared the 2009 Will and would thus be a material witness in the proceedings and referring to r 27 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW).
3. At a directions hearing on 28 June 2021, the primary judge instructed Mr Puleo to provide the Appellant's legal representatives with information about the extent of his involvement in "conferences and giving instructions, et cetera".
4. On 12 July 2021, Mr Puleo informed Ms McIntyre that, in relation to the 23 affidavits which had by that stage been filed in the proceedings, he was responsible for drafting those of Ms Williams sworn on 9 October 2020, the executors sworn on 9 October 2020, Connie sworn on 22 April 2021, Graham Ball sworn on 18 May 2021 and Giuseppe Bonarrigo sworn on 11 June 2021. Mr Puleo set out that he had either not been involved in the preparation of any of the other affidavits or had only been involved to the extent that he had attended conferences with the witnesses, arranged for formal details to be included on the affidavit and for the relevant witness to attend his office for him to witness their signatures and/or acted as a conduit between counsel and the witness in relation to the affidavit.

Ground 5 - David DiMaria

1. This ground of appeal pertained to the primary judge's rejection of parts of paragraphs 26 and 30 as well as all of paragraphs 27, 28 and 29 of the affidavit evidence of David DiMaria "on the basis that it was unclear what period of time the evidence related to."
2. The relevant section of David's affidavit, sworn 23 May 2021 (with the rejected material struck through), was as follows: "My Nonna's declining mental capacity while my Nonno was alive 23 My Nonno was sick and largely bedridden for a long time prior to his death in July 2009. I cannot now recall precisely when his health began to deteriorate. My Nonno required a lot of care, which I observed was largely provided by my mother. 24 My Nonno would spend large periods of time in bed. … 26. I recall visiting my grandparents on many occasions while my Nonno was sick. On each of these occasions, my Nonna did not recognise me. She appeared confused when my mother opened the front door to let me into my grandparents' home. 27 My mother would repeatedly say to my Nonna, in Calabrese: 'It's my son'; or 'It's your grandson'. 28 Occasionally, after my mother had explained it many times to my Nonna, my Nonna would appear to recognise me. However, a minute or so later, she would forget who I was again. 29 Most times, even with my mother's constant prompting, my Nonna would be unable to remember me at all. 30 At around this time, my Nonna stopped asking me if I had eaten and did not offer to make me a coffee like she used to. 31 My Nonna also stopped enquiring about my spouse and asking if I was working as she had done previously. 32 … Whenever she heard a bird call coming from the garden, she would start screaming. … 36 I began to find it upsetting to visit my Nonna and my Nonno. I loved my grandparents and wanted to visit them … Nevertheless, I continued to visit them. 37 Occasionally, my spouse Melissa and our children would also visit my Nonna and my Nonno with me, typically at Easter and Christmas. 38 During my visits, my Nonna would typically be inside sitting in a chair or shuffling round the house using a walker. This was a stark contrast to when I would visit her as a child, when she would typically be outside working in her garden. My Nonna's capacity in 2009 39 By the time of my Nonno's death in 2009, my Nonna was no longer able to recognise me. This was the case even though she had known me my entire life and I had visited her regularly."

Ground 6 - Jones v Dunkel and the failure to call Connie

1. As was noted by the primary judge, Connie was not called by Dominic and John as a witness. This was said to give rise to a Jones v Dunkel inference against Dominic and John, to the effect that any evidence that Connie may have given would not have assisted their case. The primary judge's failure to draw such an inference is the subject of ground 6 of the Amended Notice of Appeal in the Probate Proceedings and ground 5 of the Amended Notice of Appeal in the Trust Proceedings.
2. Connie had sworn two affidavits in support of Dominic and John's case, dated 12 January 2021 and 22 April 2021 respectively. Neither was read at first instance. On appeal, Ms Needham pointed out that a hearing schedule (of the trial) provided by Dominic and John to the other parties in advance of opening submissions did not list Connie as a witness, from which, it was submitted, it should have been clear that Connie was not going to be called by them. A subpoena for Connie to appear and give evidence was issued by Rose's representatives shortly before the hearing, which was returnable on 1 November 2022. Connie did not appear, but Rose's representatives did not apply for a bench warrant to enforce the subpoena.
3. The primary judge's view on this matter was clearly and shortly expressed (at PJ [212]-[214]): "I do not accept the submission made that an inference should be drawn, against Dominic and John, principally, because a subpoena to give evidence had been served by Rose, with which subpoena Connie had failed to comply. No further step was taken by the legal representatives of either party to ensure Connie's attendance. Furthermore, it is highly unlikely, in circumstances where she had failed to comply with the subpoena, that she would have complied with any request of Dominic, or John, that she attend for cross-examination. In Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], the plurality wrote that "[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led". In my view, that each of the parties might have been able to call additional evidence relevant to their, or her, case, did not establish that the evidence each did call, otherwise, was deficient or insufficient for appropriate inferences and conclusions to be drawn in their or her favour. Ultimately, it is unnecessary to decide this case based on evidence not relied upon, or upon the basis of inferences to be drawn from the failure to call evidence. It seems to me that the lack of evidence from Connie ought not be permitted to obscure the significance of the other evidence in the case."

Grounds 1-3

1. Grounds 1-3 have been set out at [172] above. Grounds 1-2 challenge the primary judge's conclusion as to testamentary capacity and his Honour's finding that the deceased knew and approved the contents of the 2009 Will. Ground 3 is directed to questions of sufficiency of weight given to the evidence of particular witnesses. This ground is necessarily affected by the fact that questions of weight were influenced by the primary judge's assessments of the credibility of the evidence of particular witnesses, assessed in the context of the whole body of evidence before the Court. Nevertheless, Mr Owens sought to make serious attacks on the primary judge's findings in relation to a number of lay witnesses, as well as to attack the basis of his rejection of Rose's evidence.
2. It has been emphasised that the role of the test in Fox v Percy is particularly acute in circumstances where a primary judge's findings are based on demeanour in the witness box, as such findings are "likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence": Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (Lee) at [55]; see also J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 (Vella) at [214]-[216].
3. However, even where demeanour has played a lesser role in a primary judge's decision, where credit findings are in issue, "it is unlikely that … presentation in the witness box was not keenly observed and taken into account" and in making such findings a primary judge "enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript", as was held in Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29 at [84]-[85]; cf Vella at [120]-[121]. At [41], the plurality in Fox v Percy said that the Court of Appeal "was bound to afford respect to the endeavour of the judge to give the correct and lawful conclusion to the puzzle presented to him" and that: "No doubt, the Court of Appeal also took into account the unexpressed considerations that went into the judge's conclusion. No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another." (Footnote omitted.) The essence of this observation was taken up by Stern JA in Vella at [214]-[216] in a discussion which has application to the current appeal: "It is well recognised that where the credibility of witnesses is involved, the trial judge enjoys advantages over an appellate court by reason of having seen the witnesses and having been immersed in the milieu of the trial. In such a case, the trial judge's findings are 'likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence': Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 ('Lee') at [55]. Even if the Court does not expressly rely upon demeanour, as Tobias AJA held in Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29 at [84]- [85], where findings of credit are clearly in issue 'it is unlikely that...presentation in the witness box was not keenly observed and taken into account' and in making such findings a trial judge 'enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript.' As stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] ('Fox v Percy'), and as summarised in Lee at [55], in order to succeed in appealing findings influenced by the credibility of witnesses it is necessary to establish that the primary judge's findings were 'glaringly improbable' or 'contrary to compelling inferences'. The appellants accepted in their written submissions that they needed to meet that threshold. In oral submissions, however, Senior Counsel for the appellants submitted that the primary judge's findings were based upon plausibility rather than credit, such that 'the strict Fox v Percy' approach did not apply. I would reject that characterisation. Whilst I accept that the supposed categories of fact finding are 'so porous that no definitive test is possible': Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [15] (Basten JA), in this case the primary judge's findings were most likely affected by impressions about the credibility and reliability of the witnesses formed as a result of seeing and hearing the witnesses give evidence. That is so even though her Honour's findings as to credit were informed by an assessment of the evidence as a whole, including the plausibility of the accounts of the various witnesses having regard to the documentary evidence. In these circumstances, the appellants face the high hurdle set out above in seeking to have those findings set aside."

1. The significance of the medical "record" was reinforced by other evidence relied upon by the primary judge, including that of Mr Puleo and a number of other lay witnesses, who were accepted by the primary judge as witnesses of credit.
2. Dr Romeo had been the deceased's general practitioner since July 1999 and saw the deceased on a regular basis. The deceased was often accompanied to appointments by one or more of her children. Had she exhibited signs of having hallucinations or other cognitive deterioration, one would expect that her children would have reported such concerns to Dr Romeo. (One of Rose or Connie reported to Fairfield Health Service on 11 July 2014, for example, that her mother "has visual hallucinations"). The primary judge attached significance to the absence of any such notations in Dr Romeo's records and so do I (noting that I have already dealt with Professor Watson's criticism of Dr Romeo's notetaking at [106]-[115] above). The primary judge said the following at PJ [835]: "The contemporaneous clinical notes do not provide much direct evidence of when the onset of any cognitive impairment occurred, or very much about its course. However, in considering Dr Romeo's evidence, affidavit and oral, it is important to remember that the contemporaneous clinical notes, which he was duty bound to record, were kept by a general medical practitioner in the course of a busy medical practice, who had regularly seen the deceased, and that his evidence was given over a decade after the events which he was being asked to remember, in respect of a patient who was one of many others he had seen at the time, and since. I have borne these matters in mind when reflecting on his evidence. It is also to be remembered that the clinical notes form a contemporaneous continuous record, spanning many years, before, and after, the 2009 Will was made, and were written by a treating medical practitioner. The clinical notes are obviously worthy of careful consideration. However, they must be judged alongside the other evidence in the proceedings."
3. His Honour continued at PJ [838]: "I am satisfied that, in giving his evidence, Dr Romeo was doing the best that he could to recollect the deceased and to state his opinion about her medical condition. He accepted that much detail had been lost from his memory due to the passage of time and the number of patients he had seen since 2009: Tcpt, 2 November 2022, p 187 (23-29); 191(13-14); 193(49)-194(2); 196(41)-197(21). His evidence cannot be discounted completely, as it forms part of the mosaic of facts which must be considered in reaching the conclusion about the deceased's testamentary capacity."

Conclusion on grounds 1-3

1. Having closely reviewed all of the evidence, including the medical records and what they did and did not contain, the joint report and cross examination of the experts and the various assumptions put to them, and taken into account the limited factual matters upon which the Appellant's challenges to factual findings succeeded, bearing in mind the primary judge's advantages in his assessments of the credibility of particular witnesses (including Mr Puleo) which supported his conclusions as well as his immersion in a lengthy trial, I would reject grounds 1-3 of the appeal in the Probate Proceedings.
2. The Prasetyo letter, upon which the Appellant placed very heavy reliance, did not have the forensic significance the Appellant claimed for the reasons set out earlier in this judgment, and no "glaring errors" were established. In making this observation, I have not overlooked his Honour's misapprehension that the reference to jewellery in the 2009 Will represented a change to Giuseppe's Will where a similar clause was to be found (see [133] ff above), albeit that the 2009 Will added that the jewellery that was to be given to Rose and Connie "in equal shares". I have also taken account of the fact that the lay evidence led on behalf of the Appellant which placed the deceased's cognitive impairment well prior to 2009 was not supported by the joint experts or the medical records.
3. To adapt the words of Basten JA in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [47], while "it is true that the Court must be affirmatively satisfied as to testamentary capacity, … 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 [in Re Griffith at 290], 'a grave matter.'" Basten JA continued by observing that a "doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity."
4. In reaching my conclusion, I have also borne in mind, to pick up the language of Kirk JA in Lim v Lim [2023] NSWCA 84 at [9], that "what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg, in terms of providing for those who might have been expected to be provided for), the easier it may be to establish the requisite capacity."
5. Kirk JA made reference to White JA's decision in Croft at [126] in this regard where his Honour said: "The will was inofficious. Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument."

The Trust Proceedings

1. The primary judge's process of reasoning in relation to the Trust Proceedings has been set out at [61]-[69] above. It will be noted that his Honour's conclusions on this leg of the case were expressed in the alternative and on the contingency that the deceased's capacity was not established and the 2009 Will was declared invalid: at PJ [989].
2. By Amended Notice of Appeal, the Appellant propounded seven grounds of appeal in the Trust Proceeding: "1 The trial judge erred in finding that the property located at 113-119 Herbert Street, Kemps Creek (Lot 6 in Deposited Plan 205426) ('Kemps Creek property') is held on trust for the first and second respondents as tenants in common in equal shares. 2 Further to Ground 1 above, the trial judge erred in finding that: a) the late Elisabetta Meduri ('the deceased') made, or acquiesced in, a clear and unequivocal promise that caused the first and second respondents to reasonably assume the existence of a particular legal relationship; b) the first and second respondents relied on any promise or assurance to their detriment; c) the first and second respondents carried out the improvements to the Kemps Creek property in reliance upon the asserted promise or assurance; d) each of Giuseppe and the deceased, by making their respective Wills, regarded any promises made or assurances given as 'more than a mere statement of present (revocable) intention'; and e) it would be unconscionable, in all the circumstances, for the first and second respondents not to receive the Kemps Creek property out of the estate of the deceased. 3 The error in the trial judge's findings the subject of Grounds 1 and 2 above were caused, or contributed to, by his Honour: a) giving excessive weight to the evidence of: i. The first respondent ii. The second respondent iii. Giuseppe Bonarrigo b) failing to give sufficient weight to the evidence of: i. Anthony Meduri ii. Kerry La Rue iii. the appellant iv. Alan Wild; 4 Further to Ground 3, the trial judge erred in failing to make any finding as to whether the deceased, in August and September 2009, had sufficient mental capacity to repeat the promise made or assurance given to the first and second respondents to the effect that the deceased would leave the Kemps Creek Property to the first and second respondents in her Will. 5 Further to Ground 3 above, the errors in the trial judge's findings the subject of Grounds 1 and 2 above were caused, or contributed to, by his Honour's failure to draw an inference in accordance with Jones v Dunkel against the first and second respondents by reason of their failure to call evidence from Connie Di Maria. 6 [Not pressed] 7 Further, the trial judge erred in making the contingency finding that, if the deceased's estate was to be distributed on intestacy, adequate and proper provision was not made for the first and second respondents. 7A Further, or in the alternative, the trial judge erred in his exercise of discretion in determining the question of costs by ordering that the appellant: a) pay the first and second respondents' costs, calculated on the ordinary basis, of the proceedings (other than in respect of the first and second respondents' claims for a family provision order); and b) bear her own costs of the proceedings, other than her costs of defending the part of the trust claim made by the first and second respondents for a family provision order, calculated on the ordinary basis. In the event that the orders made by the trial judge in the principal judgment are not overturned on appeal, the trial judge should have found that: i) the appellant was defending the proceedings on behalf of the deceased's estate such that the appellant receive her costs, calculated on the indemnity (or, alternatively, the ordinary) basis, of the proceedings, out of the deceased's estate; ii) the first and second respondents' costs, calculated on the ordinary basis, of the proceedings (other than in respect of the first and second respondents' claims for family provision orders), be paid out of the deceased's estate: and iii) the first and second respondents otherwise bear their own costs of the proceedings."

Costs of the trial

1. There remains to be considered the question as to the costs of the trial, recalling that the Probate and Trust Proceedings were heard together with a claim by Joseph and that John and Dominic also pressed an alternative family provision claim. Reference has been made at [7] above to the primary judge's separate judgment on costs, and grounds 7A in both appeals challenged his Honour's elaborate orders as to costs. Although the primary judge made separate costs orders in both the Probate Proceedings and the Trust Proceedings, he considered the question of costs in a single judgment and necessarily had to take into account in his assessment the factual and legal overlap between the different proceedings.
2. Both decisions as to costs were discretionary and closely reasoned, taking into account the complexity and overlapping nature of the proceedings. A successful appeal on the question of costs would involve unscrambling a very well-cooked egg.
3. In the absence of success in the challenge to the outcome of the Probate Proceedings, the starting point must be that the primary judge was best placed to assess the question of where costs should lie in respect of the proceedings at first instance.
4. No error of principle or submissions of any substance were advanced in writing for disturbing the primary judge's decision as to costs in respect of the Probate Proceedings. The rejection of the Appellant's appeal in relation to the Probate Proceedings means that there should be no disturbance of the primary judge's decision as to costs at first instance.
5. In their submissions in relation to the Trust Proceedings, it was emphasised that the Respondents' trust/estoppel and family provision claims were made against the estate and that the Appellant effectively represented the estate in those proceedings. Reference was made to various observations by the primary judge in the course of interlocutory proceedings as to the fact that he did not wish to see two sets of costs (Rose's and the administrator's) coming out of the estate. It was submitted that Rose was the proper contradictor and thus that she should have had her costs out of the estate, and on an indemnity basis.
6. It was put, in separate submissions in relation to costs, that the primary judge had effectively encouraged the Appellant to conduct the defence of the Trust Proceedings instead of the independent administrator (a position the independent administrator fully supported) but that, in his judgment, the primary judge "did not advert to Rose's submission or the exchange at the directions hearing on 28 June 2021." This submission is not entirely correct. At [38] of the costs judgment, the primary judge noted that Ms Needham had submitted in relation to the Trust Proceedings that "Rose was not defending the proceedings as a representative of the deceased's estate, but rather as a person promoting her own financial and personal interests." This was in effect the answer put forward (and accepted) to the contention advanced by Rose which she claimed his Honour did not take into account.

Costs of the appeals

1. The Appellant must also bear the costs of the appeal. The three days of argument on appeal were overwhelmingly concerned with the appeal in the Probate Proceedings which was lost. Very little separate attention was devoted to the appeal in the Trust Proceedings and, in any event, it only arose in the event that the appeal in the Probate Proceedings succeeded, which it did not.

Conclusion and orders

1. Both appeals should be dismissed with costs.
2. WHITE JA: I agree with the orders proposed by the Chief Justice. Subject to the observations below I agree with his Honour's reasons.
3. The qualification to my agreement with the reasons of the Chief Justice relates to [244]-[255] of those reasons. The Chief Justice is there critical of observations of Jackman J in Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [121]-[129] insofar as Jackman J was critical of what has been the "usual practice in New South Wales" in the preparation of affidavit evidence of using direct speech to recount past conversations of which a witness recalls only the "gist" ([244]-[245]). The Chief Justice is also critical of observations of Jackman J in Chu v Lin, Goldstone Capital Pty Ltd [2024] FCA 766 at [11] in which Jackman J considered that adherence to the practice can adversely affect a witness' credibility ([246]).
4. The Chief Justice is also critical of the statement made by Jackman J in Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 where Jackman J said ([at 277]) that his remarks in Kane's Hire were primarily directed to changing the longstanding practice in New South Wales as to how evidence of conversations should be given.
5. I do not agree with these criticisms.
6. It is of first importance to recognise that a witness' affidavit, or witness statement which is to be adopted in the witness box, will constitute the witness' evidence in chief. It therefore should be given in the witness' own words. The role of the lawyer is principally to provide a logical or coherent structure to the evidence, to exclude what is irrelevant, and, if necessary, to put the statement in a form required by the court to be admissible.
7. Where the witness is giving evidence of a conversation, it is axiomatic that the witness should give his or her best account of the conversation according to the best of his or her recollection. If he or she professes to recall the words used, or some of the words used, he or she should say so. For the reasons below, if the witness does not have such a recollection the witness can and should give evidence, in his or her own words, of what memory, perception or understanding he or she has as to the effect of what was said.
8. In their valuable article "Conversational evidence: A stake in the heart of 'direct speech' & the psychology of conversational memory" (2023, Summer) Bar News, Journal of the NSW Bar Association 50, Stowe, Vial, Paterson, and Temler rightly observed that "gist" evidence (that is the recollection of the "gist" of a conversation) can have different degrees of particularity. To quote from their article: "'Gist' evidence might be presented in the following forms: ● 'My best recollection is that I offered to sell the car for $10,000. John agreed if I included the trailer. I said that was okay but I needed John to pay by Monday. John agreed with that.'; or ● 'My strong impression was that we agreed that I would sell the car and trailer, although I can't recall the exact conversation or the basis for my impression'."

Endnote

1. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-57a-business-and-property-courts/practice-direction-57ac-trial-witness-statements-in-the-business-and-property-courts DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2024