Supreme Court New South Wales Medium Neutral Citation: Chisak v Presot [2021] NSWSC 597 Hearing dates: 23 – 25 March 2021 and 30 March 2021 Date of orders: 27 May 2021 Decision date: 27 May 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that the amended Statement of Claim filed by the Plaintiff on 11 December 2019 be dismissed. (2) Orders that probate in solemn form of the Will dated 26 April 2017 be granted to the Defendants. (3) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return that original to the Defendants. (4) Stands over the proceedings to 9:00 a.m. on 10 June 2021 for the determination of costs. Catchwords: SUCCESSION — Contested probate – Alleged lack of testamentary capacity - Lack of knowledge and approval - Suspicious circumstances - Whether deceased knew and approved the contents of the 2017 Will - Whether onus on the propounders of the 2017 Will has been discharged SUCCESSION - FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff - Claim by adult grandchild of the deceased - Whether wholly or partly dependent upon deceased at any particular time - Whether factors warranting the making of the application - Lack of any contact with the Plaintiff for some years - Limited telephone contact but it stopped about 9 years before death of the deceased - Some provision made for Plaintiff in the Will - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if not, the nature and quantum of the provision to be made for her - Claim for relief dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Succession Act 2006 (NSW) Cases Cited: Alexander v Jansson [2010] NSWCA 176 Amaca Pty Ltd v Novek [2009] NSWCA 50 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Bayssari v Bazouni [2014] NSWSC 910 Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583 Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 Bracher v Jones [2020] NSWSC 1024 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Faggoter [1998] NSWCA 44 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Churton v Christian (1988) 13 NSWLR 241 Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 Croft v Sanders [2019] NSWCA 303 Diver v Neal [2009] NSWCA 54 Doulaveras v Daher (2009) 253 ALR 267; [2009] NSWCA 58 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535 Gorton v Parks (1989) 17 NSWLR 1 Gould v Gould [2005] NSWSC 914 Hawes v Burgess [2013] EWCA Civ 74 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 In the Estate of Muirhead, Deceased [1971] P 263 Jones v Dunkel (1959) 101 CLR 298 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Leahey & Trescowthick [1999] VSC 409 Lodin v Lodin [2017] NSWCA 327 MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318 Manly Council v Byrne [2004] NSWCA 123 Mayfield v Lloyd-Williams [2004] NSWSC 419 McKenzie v Baddeley [1991] NSWCA 197 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Morley v ASIC [2010] NSWCA 331 Musa v Alzreaiawi [2021] NSWCA 12 Payne v Parker [1976] 1 NSWLR 191 Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Petrohilos v Hunter (1991) 25 NSWLR 343 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Porthouse v Bridge [2007] NSWSC 686 Power v Smart [2018] WASC 168 Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Re Fulop Dec'd (1987) 8 NSWLR 679 Sammut v Kleemann [2012] NSWSC 1030 Sherborne Estate: Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 593 Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4 Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35 Skinner v Frappell [2008] NSWCA 296 Smart v Power [2019] WASCA 106 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Starr v Miller; Starr v Miller [2021] NSWSC 426 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11 Wharton v Bancroft [2011] EWHC 3250 Yee v Yee [2017] NSWCA 305 Category: Principal judgment Parties: Ivy Hope Chisak (Plaintiff) Emanuela Presot (first Defendant) Adelina Presot (second Defendant) Representation: Counsel: M W Sneddon (Plaintiff) Dr J Lucy (Defendants) Solicitors: Fox & Staniland Lawyers (Plaintiff) Berala Law Group (Defendants) File Number(s): 2018/227413 Publication restriction: Nil Judgment Introduction 1. HIS HONOUR: Almost 50 years ago, in In the Estate of Muirhead, Deceased [1971] P 263, Cairns J wrote, at 265: "I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents." 1. More recently, in Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote at [9]: "The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost." 1. Finally, by way of introduction, I repeat what was written in Hawes v Burgess [2013] EWCA Civ 74, by Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed), at [14]: "I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death." 1. Lily Savransky ("the deceased") died on 8 September 2017. At the date of her death, she was 87 years old, having been born in January 1930. These are bitterly fought Succession List proceedings brought by the Plaintiff, Ivy Hope Chisak, the only biological grandchild of the deceased. The matter was listed for four days, and was completed, within that time. 2. It is not difficult to appreciate, when one reads what follows, how expensive, and self-destructive, this litigation must be to the financial health of the parties, particularly the Plaintiff. However, every suggestion to resolve the proceedings, made to the legal representatives of the parties, both before, and during, the hearing, appears to have fallen on the deaf ears of the parties. In saying that, I do not doubt that the legal representatives appreciated, and explained to the party or parties represented, the commercial folly of the litigation. The matter, however, was not able to be resolved and continued with oral submissions being made on the last day of the hearing. 3. The deceased left three duly executed Wills, the last in time dated 26 April 2017 ("the 2017 Will"); the second last in time, dated 3 June 2009 ("the 2009 Will"), which was tendered as Ex P1; and the earliest in time dated 20 September 1999 ("the 1999 Will"), the original of which was not tendered as neither party sought Probate of that Will. I shall refer to the relevant Wills, although there is a dispute about the validity of the 2017 Will, as "the 2017 Will" and "the 2009 Will", respectively, only for convenience and without any prejudgment. 4. On 15 November 2017, this Court granted Probate in common form of the 2017 Will to Emanuela Presot and Adelina Presot, who are the first and second Defendants, respectively, and the executors appointed under that Will. The original grant of Probate was delivered to the Court and was marked Ex D1. It will remain in the Court file subject to the orders made. 5. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and the beneficiaries, after introduction, by her first name as a number of them have a common surname. 6. By agreement of the parties, and with the approval of the Chief Justice, the hearing proceeded as a live hearing. 7. The parties had discussed the order of witnesses before the hearing commenced. It was agreed that the Defendants' witnesses would be called first, then the Plaintiff, and then the two medical experts. This necessitated some flexibility in the conduct of the proceedings but was able to be achieved in an orderly manner and with the co-operation of the legal representatives. 8. I am grateful to counsel for the detailed submissions provided before, and during, the hearing, which has assisted the Court in the preparation of these reasons. 9. Finally, I should mention that the Court followed the Supreme Court's then updated Coronavirus (COVID-19) announcement of 12 February 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to were able to do so). Naturally, the physical distancing rules remained in operation. The nature of the proceedings 1. Ivy commenced the proceedings by Statement of Claim filed on 24 July 2018. The proceedings concern, amongst other things, a claim by her that the grant of Probate in common form of the 2017 Will should be revoked and that probate of the 2009 Will should be granted to her. She filed an amended Statement of Claim on 11 December 2019. The only amendment was the addition of the following paragraph: "A declaration that the deceased did not have testamentary capacity at the time of her purporting to make a new Will on 26 April 2019 [sic]." 1. At the commencement of the hearing, counsel for the Plaintiff noted the typographical error, and the Court was asked to read "2019" as "2017". Without objection, this was amended in handwriting on the amended Statement of Claim, although it was pointed out that there was no need for the declaration if the Court came to the view that the 2017 Will was not the last valid Will of the deceased as the Court would revoke the grant. 2. It is clear that the Plaintiff is not entitled to the relief she seeks even if successful in her Probate claim as she is not the executrix named in the 2009 Will. There is no evidence that the Defendants, who are the executors named in the 2009 Will, have renounced Probate, or that they intend to renounce Probate of that Will. 3. Ivy's probate claim was based upon allegations that (a) the deceased lacked testamentary capacity; (b) that she did not know and approve the 2017 Will; and (c) that suspicious circumstances existed at the time she made that Will. 4. The basis of the contest referred to in (c) above, relates to what has been described, in probate law, as the doctrine commonly invoked by the use of the expression "suspicious circumstances". 5. In Power v Smart [2018] WASC 168 (not challenged on appeal in Smart v Power [2019] WASCA 106), Derrick J observed at [663]: "When considering if there are circumstances that give rise to a suspicion that the testator might not have known and approved of the contents of a will, the court looks at a number of factors including the circumstances surrounding the preparation of the will, whether a beneficiary was too involved in the preparation of the will, the extent of the physical and mental impairment, if any, of the deceased, whether the will in question constitutes a significant change from a prior will, whether the lawyer or person who prepared the will takes a benefit, and whether the propounded will generally seems to make testamentary sense: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 [96] ‑ [111]; Veall v Veall [173]; The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 [135]." 1. At the commencement of his oral submissions, counsel for the Plaintiff stated that the Plaintiff did not wish to rely on this ground. The withdrawal of this assertion was appropriately made as there was no evidence of involvement of any of the beneficiaries in the deceased making the 2017 Will. Indeed, Emanuela, Adelina, and Anna, each gave evidence that she did not know of the contents of the deceased's Will: Affidavit, Emanuela Presot, 19 March 2019 at par 13; Tcpt, 23 March 2021, p 101(02-03); Affidavit, Adelina Presot, 19 March 2019 at par 21; Tcpt, 23 March 2021, p 81(46-48) and p 82(06); Affidavit, Anna Savateev, 15 March 2019 at par 17. (Whilst Linda did not expressly say so in her affidavits, there is no evidence that she knew about the contents of the 2017 Will.) 2. The Defendants opposed the revocation of the grant of Probate of the 2017 Will. As written, they did not dispute the validity of the 2009 Will but stated that it had been revoked by the 2017 Will. They did not file a Cross-Claim seeking a grant of Probate in solemn form of the 2017 Will. There was no dispute that, even though Probate in common form of the deceased's Will has been granted, the case was one requiring the Defendants to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2017 Will. 3. During the hearing, the Court raised with counsel the question whether, if the Probate proceedings were dismissed, it was necessary to revoke the grant in common form of Probate of the 2017 Will and to make a grant of Probate in solemn form of that Will. 4. I confirmed that the practice of the Court, where Probate in solemn form is granted after Probate in common form has been granted, is not to revoke the original grant of Probate, but to make an order that the original grant be delivered up to the Court so that the grant in common form and the newly made grant in solemn form are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [21]. 5. There was also no dispute that, in the event that Probate of the 2017 Will was revoked, there should be a grant of Probate in solemn form of the 2009 Will to the Defendants, who are also the executors named in that Will. Although the parties had agreed, the Court, independently, would still have to be satisfied of the due execution of the 2009 Will. Thus, if the Defendants did not succeed in establishing the validity of the 2017 Will, there would have been a grant of Probate, in solemn form, of the 2009 Will. 6. If the Plaintiff did not obtain an order revoking Probate of the 2017 Will, she sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. 7. If a family provision order is made in favour of the Plaintiff, it is important to remind the legal representatives that a certified copy of any order made under the Act must be copied onto the grant of Probate as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will: s 72(1)(a) of the Act). It is only if the order is actually endorsed on the grant of Probate that the grant can correctly represent what are the dispositive provisions of the Will of which Probate has been granted: Gould v Gould [2005] NSWSC 914 at [6] (Campbell J). Also see paragraph 23(a) of Practice Note SC Eq 7. The Wills of the deceased 1. The 2017 Will was a professionally drawn Will comprising one page with only the attestation Clause on the second page. It provided: 1. For the revocation of all former wills and testamentary dispositions, and declared it to be the deceased's last Will: Clause 1; 2. Appointed "my friends", Emanuela Presot and Adelina Presot to be the Executors and Trustees of the Will: Clause 2; 3. Directed the Trustees to pay all debts, funeral and testamentary expenses: Clause 3; 4. Gave directions for her funeral service and burial: Clause 4; 5. Directed the Trustees to sell her property at Lidcombe: Clause 5; 6. Gave "the whole of my estate both real and personal of whatsoever kind and nature and wheresoever the same may be situate to EMANUELA PRESOT, ADELINA PRESOT, my friend LINDA PRESOT, my friend ANNA SAVATEEV…and my granddaughter IVY HOPE CHISAK for their own use and benefit absolutely in equal shares as tenants in common": Clause 6; and 7. Empowered the Trustees in their absolute discretion to do certain things: Clause 7. 1. The 2009 Will was a professionally drawn Will comprising several pages with only the attestation Clause on the third page. It provided: 1. For the revocation of all former Wills and Testamentary dispositions, and declared it to be the deceased's last Will: Clause 1; 2. Appointed "my friends" Emanuela Presot and Adelina Presot to be the Executors and Trustees of the Will: Clause 2; 3. Directed the Trustees to pay all debts funeral and testamentary expenses: Clause 3; 4. Directed the Trustees that there was to be "a simple funeral" and burial at Rookwood Cemetery: Clause 4; 5. Directed the Trustees to sell her property at Lidcombe: Clause 5; 6. Gave a pecuniary legacy of $7,500 to "my friend", Emanuela Presot: Clause 6; 7. Gave a pecuniary legacy of $7,500 to "my friend", Adelina Presot: Clause 7; 8. Gave a pecuniary legacy of $5,000 to "my friend", Irene Onis: Clause 8; 9. Gave a pecuniary legacy of $5,000 to "my friend", Anna Savateev: Clause 9; and 10. Left the residue of her estate to the Plaintiff upon attaining the age of 25: Clause 10. 1. It can be seen that each of the 2017 Will and the 2009 Will is in relatively simple terms. Some formal matters not in dispute 1. The 2009 Will was prepared by a solicitor, Jihad Shahrouk, who gave evidence and who was cross-examined. 2. I am satisfied, that the 2009 Will had been duly executed in accordance with s 6 of the Act, and that it appeared, at the time it was made, to be a rational Will. In addition, the affidavit of one of the attesting witnesses to prove due execution, in relation to the signature of the deceased, was read, in order to obtain a grant of Probate in solemn form of that Will: Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422]. The requirements of testamentary capacity, and of knowledge and approval, had also been satisfied in relation to that Will. 3. There was no dispute that the 2017 Will satisfied the statutory requirements of s 6 of the Act, relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased respectively, in the presence of, and at the direction, of her; (b) the signature was made by the deceased, in the presence of two or more witnesses present at the same time; and (c) two of those witnesses attested and signed the 2017 Will in the presence of the deceased. In other words, the 2017 Will was duly executed. 4. There was an affidavit of one attesting witness of the 2017 Will. It was also prepared by Mr Shahrouk and sworn on 22 August 2018. 5. The proceedings, so far as they relate to Ivy's claim for a family provision order, were filed within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased). 6. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. One category of eligible persons is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act). There is no age limit prescribed by the Act in the case of a claim by a grandchild. 7. In the case of an applicant who, relevantly, falls within s 57(1)(e) of the Act, the Court must be satisfied, having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s 59(1)(b)). 8. Whilst there was no dispute that the Plaintiff is a grandchild of the deceased, the Defendants denied that she was, at any particular time, wholly, or partly, dependent upon the deceased. They also asserted that, even if the Plaintiff were an eligible person, there were no factors warranting the making of her application. Finally, they submitted that even if she is an eligible person, and there were factors warranting the making of the application, the provision made for her in the 2017 Will was adequate and proper in the circumstances of the case. They submitted that the proceedings should be dismissed in their entirety. 9. The parties also accepted that if the grant of Probate of the 2017 Will was revoked, there was no need to make a family provision order as Ivy would receive the whole of the deceased's estate under the 2009 Will. 10. The parties agreed that, as the deceased had dealt with all of her estate in whichever was her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased. 11. There is no dispute that each of the other beneficiaries named in the Will is not an eligible person. However, the Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. 12. In the family provision proceedings, it will be necessary to consider the interests of each, respectively, as a beneficiary, later in these reasons, when the claim for a family provision order is determined. 13. None of the other beneficiaries advanced her financial circumstances, as a competing claimant, on the bounty of the deceased. In Sammut v Kleemann [2012] NSWSC 1030 at [136]-[140], I set out the principles that apply in a case where a beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly: "The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (unreported, Macready M, 5 December 1996 at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant." 1. Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23]. 2. Even if the Court may infer that each of the other beneficiaries has no competing financial need for provision from the estate of the deceased, and that, on a comparative basis, each is better off than Ivy, her silence does not mean that her competing claim, as a beneficiary, should not be evaluated. As will be read, what is "proper" requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the applicant and of the other beneficiaries. 3. As stated above, the consequences of not disclosing the beneficiary's financial resources and needs simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by Ivy, the Court will not disregard the competing interest of each beneficiary who has a claim upon the bounty of the deceased as a chosen object of the deceased's bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19. 4. In Foley v Ellis [2008] NSWCA 288, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35: "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act." 1. However, none of the other beneficiaries named in the deceased's Will has to prove an entitlement to the provision made for her or justify such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will. 2. Each of the beneficiaries did give evidence of the close relationship that she had with the deceased to demonstrate that the 2017 Will was a rational one, and to confirm the moral claim that she had and the basis of her entitlement as a chosen object of testamentary bounty. Each of them also, briefly, gave evidence of her personal circumstances which would suggest a need for her entitlement under the Will not to be disturbed, for example, carer's responsibilities and state of health. 3. A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. 4. There is no property that is able, or sought, to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by Ivy, she did not seek an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased's estate that has been distributed, other than amounts that have been paid on account of the costs of Ivy and the Defendants (as executors to whom Probate was granted). Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased. A summary of the issues and the Court's conclusions 1. The issues formally before the Court for consideration, and the conclusions reached, are: 1. Did the deceased have testamentary capacity at the time she made the 2017 Will? I conclude that she did. 2. Did the deceased know and approve the contents of the 2017 Will? I conclude that she did. 3. Having found that the 2017 Will is a valid Will, is Ivy an eligible person within the meaning of s 57(1)(e) of the Act? Whilst I am satisfied that she is a grandchild of the deceased, I am not satisfied that she was, at any particular time, wholly, or partly, dependent on the deceased. 1. Although having reached the above conclusions, it is unnecessary to decide the additional issues, for completeness, I record, in case I am wrong about the conclusion in (c) above: 1. If Ivy is an eligible person within s 57(1)(e) of the Act, having regard to all the circumstances of the case (whether past or present), are there factors which warrant the making of the application? I am satisfied that there are factors which would warrant the making of the application. 2. If Ivy is an eligible person, and if there are factors that warrant the making of the application, should a family provision order be made for her out of the deceased's estate? I conclude that an order for additional provision out of the estate of the deceased, should not be made, upon the basis that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has been made by the 2017 Will of the deceased. The nature and value of the deceased's estate 1. On 17 November 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contains: "a) The assets and liabilities of the estate at the date of death; b) The assets and liabilities of the estate at the date of the schedule; c) The estimated costs and expenses of any property that is to be sold; d) The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; e) Any costs of any party that have been paid, and in relation to either party, whether those costs have been paid out of the estate of the deceased." 1. During the hearing the parties tendered the Agreed Schedule as Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.) 2. The gross value of the deceased's estate, at the date of death, was $1,267,038. After paying some liabilities ($6,181) the gross value of the estate was $1,260,857. 3. At the time of the hearing, the gross value of the deceased's estate was agreed to be $921,128. 4. At the date of the hearing the deceased's estate consisted of: 1. One parcel of real estate on Beatrice St, Lidcombe ($850,000); and 2. Cash held in a trust account by the deceased's solicitors ($71,128). 1. (Mr Joseph Daidone, a licensed real estate agent, was requested by the Defendants to provide his opinion on the market value of the property at XX Beatrice St, Berala. A copy of his written report is found at Ex JB2/847. In view of the location of the property and past sales in the area, he estimated the Berala property to be worth between $750,000 to $800,000. This estimate remained unchanged at the time of the commencement of the hearing. However, in cross-examination, Mr Daidone explained the reason for the lack of change in his valuation between June 2019 and March 2021 was due to a market downfall when COVID-19 occurred in 2020 and the slow recovery that has occurred towards the start of 2021: Tcpt, 23 March 2021, p 78(05-10). He then highlighted that the increase in demand for properties due to low interest rates did not pick up until the end of 2020 and beginning of 2021, noting that in the month after he had written his updating affidavit in February 2021, the market had picked up further: Tcpt, 23 March 2021, p 78(30-31). Due to this increase, Mr Daidone stated, in cross-examination, that he would value the Berala property at the time of hearing at around $850,000: Tcpt, 23 March 2021, p 79(17).) 2. In the Agreed Schedule, the liabilities of the estate, and the estimated costs of sale of the Lidcombe property, were shown to total $38,376. 3. The estimated net value of the estate, excluding the costs of the proceedings, was, therefore, $882,752. The costs of the proceedings 1. In relation to the proceedings, the total costs for Ivy were estimated, on the ordinary basis, including GST, to be $133,000. Calculated on the indemnity basis, including GST, they were $181,605: Affidavit, Andrew Gordon Cameron, 29 March 2021 at par 3-4. Ivy has already paid $20,070 of these costs (presumably from her share of the deceased's estate), leaving a balance of $112,930, of costs calculated on the ordinary basis, to be paid. 2. The total costs of the Defendants, calculated on the indemnity basis, in relation to the proceedings, were estimated to be $183,693. The Defendants have paid $45,884 of these costs from the deceased's estate, leaving a balance of $137,809 yet to be paid. 3. Noting, without deciding, that if the estimates for the costs and disbursements are accurate, and assuming that all of the balance of the costs ($250,739) will be payable out of the estate ($882,752), the total amount of the available estate out of which an order for provision could be made for Ivy is $632,013. 4. At this point, reference must be made to s 60 of the Civil Procedure Act 2005 (NSW) which provides that in any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. In my view, the total of the estimated costs and disbursements, calculated on the ordinary basis for the Plaintiff and on the indemnity basis for the Defendants, being almost $316,693 (and $365,298 for both calculated on the indemnity basis), or more than one-third of the estate, are disproportionate to the value of the estate. They are even more disproportionate to the value of any order for additional provision, that could have realistically been made in favour of Ivy if she were successful in her claim for a family provision order. 5. Furthermore, if the 2017 Will is the last valid Will, the estate will be divided into five equal parts, one of which parts would be distributed to the Plaintiff (now, using the above estimates, $126,402). Her share would have been more ($176,550), had the costs of the proceedings not been incurred. 6. I should note that the Defendants seek an order for costs against Ivy. However, I was informed that it would not be possible to determine the issue of costs as part of these reasons, as there may be a document, or documents, that may be relevant. Regrettably, this is likely to involve further costs being incurred, unless the parties agree on the costs orders, and if possible, the quantum of any costs ordered to be paid. The Witnesses 1. Ivy, is the only grandchild of the deceased. Ivy was born in 1994 and is currently 26 years old. 2. Emanuela Presot is the first Defendant in these proceedings. She is the daughter of Adelina Presot and has known the deceased for over 40 years. Emanuela works full time as a teacher and lives with her parents in Lidcombe to assist in taking care of her father. 3. Adelina Presot is the second Defendant in these proceedings. Adelina and her husband, Luciano, purchased a home on the same street as the deceased in Lidcombe in 1965. Adelina knew the deceased from that time and they became good friends, and even better friends, after Adelina retired in 1990. For the last 15 years of the deceased's life, Adelina had been assisting the deceased with shopping and other errands. In Court, Adelina gave evidence with the assistance of an interpreter. 4. Linda Presot is the daughter of Adelina and the sister of Emanuela. She is one of the named beneficiaries in the 2017 Will. Linda works as an administration clerk for a pharmaceutical company. She had known the deceased for almost 40 years and along with her mother and sister, would assist the deceased with general tasks over the last 15 years. Linda resides with her parents in Lidcombe and also assists in the care of her parents. 5. Anna Savateev is one of the beneficiaries named in the 2017 Will. Anna has been widowed for 40 years and, at the date of hearing, lived in Auburn. She first met the deceased in around 1977. Anna and the deceased's children grew up, and went to school, together. During this time, she and the deceased would meet about once a week and would often meet for coffee and other social activities. They also spoke on the telephone frequently. In Court, Anna gave evidence with the assistance of an interpreter. 6. Jihad Shahrouk has been a solicitor at Berala Law Group since 2008. He drafted both the 2009 Will and 2017 Will for the deceased. Mr Shahrouk lived across the road from the deceased's property and has known her since 1992. Whilst living with his parents he would often see the deceased outside her house or around the neighbourhood. Mr Shahrouk has also sworn an affidavit of attesting witness. 7. Dr Chanaka Wijeratne is a consultant psychiatrist and an Associate Professor (Adjunct) at the School of Medicine Sydney, Notre Dame University. Dr Wijeratne was engaged by the Plaintiff to provide an expert opinion on the testamentary capacity of the deceased at the time of the 2017 Will. Dr Wijeratne provided two reports dated 8 October 2019 and 12 March 2020. 8. Associate Professor Rosenfeld is a consultant geriatrician and physician in private practice in New South Wales. He is also a former Director of Geriatric Medicine and Senior Specialist in Geriatric Medicine at Prince of Wales Hospital. Associate Professor Rosenfeld was engaged by the Defendants to provide an expert opinion on the testamentary capacity of the deceased at the time of the 2017 Will. Associate Professor Rosenfeld provided a report dated 31 January 2020. 9. Neither of the two experts had met the deceased. Of course, as will be read, it is not for experts to determine whether the will-maker has testamentary capacity. That is a matter solely for the Court's determination. 10. Joseph Daidone has been a licensed real estate agent for over 10 years and is currently employed by Daidone reality in Berala. He was requested by the Defendants to provide a valuation of the property at XX Beatrice St, Berala. 11. Importantly, there was one person who Ivy did not call as a witness, namely her father. The Defendants submitted that the failure to do so should lead to a Jones v Dunkel inference. No evidence was given of his unavailability and there was no explanation for his absence. 12. Undoubtedly, her father is in Ivy's camp and is not an independent person who could easily have been approached by the Defendants. There was every reason to expect Ivy to have called him rather than the Defendants. 13. Counsel for Ivy failed to make any written submissions on the failure to call Ivy's father. In oral submissions, he accepted that there was no direct evidence to negate a Jones v Dunkel inference (Tcpt, 30 March 2021, p 241(30-31)). However, later in his oral submissions, he directed the Court's attention to various paragraphs in Ivy's evidence and submitted (Tcpt, 30 March 2021, p 243(10-12)) that: "True it is, certain things could've been done to prove things better, but that doesn't negative the suggestion that what she says is false or otherwise ought not be accepted". 1. Counsel for the Defendants drew my attention to Morley v ASIC (2010) 274 ALR 205; [2010] NSWCA 331 at 634 and Manly Council v Byrne [2004] NSWCA 123 at [51], and submitted that Ivy's evidence, as an interested party, should be viewed with some caution in circumstances where her father could have given direct evidence on the topic but did not: Tcpt, 30 March 2021, p 263(49) - 264(05). 2. As a matter of general principle, the unexplained failure by a party to call a witness, in appropriate circumstances, may give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called. 3. In Jones v Dunkel (1959) 101 CLR 298, Kitto J observed, at 308, that: "… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence." 1. Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384–385; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule. 2. In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote, at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party, rather than the other; (ii) his evidence would elucidate a particular matter; and (iii) his absence is unexplained. 3. Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party's case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party's case: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165] – [168] and [232]. The failure cannot fill gaps in the evidence or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably. 4. These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [77] – [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed). 5. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15] "…it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so..." 1. In Coshott v Prentice (2014) 221 FCR 450 at 469; [2014] FCAFC 88, the Court held at [81], that: "… where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 explained at 93 [440], '[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.'" 1. In short, Ivy asserted that her failure to be in contact with the deceased after about 2003, other than by telephone, until about 2007 or 2008, and then not thereafter, was as a result of her father forbidding her to do so. She failed to call him or give evidence explaining why she did not do so. He was in the best position to explain what had occurred and the reasons why. 2. I am of the view that the failure by Ivy to call her father is a matter which should be borne in mind. He could have given evidence about matters which Ivy asserted based on what she had been told. As importantly, they were unable to cross-examine him on matters that were fundamental to Ivy's case, namely her dependence upon him, rather than upon the deceased. 3. This cannot be ignored when weighing the limited evidence Ivy relied upon to support her case with all the other evidence and the deceased's statements to others about Ivy and the personal effect upon the deceased of the lack of contact with her. 4. I am satisfied that I should draw the inference that the evidence of Ivy's father would not have assisted Ivy's case. 5. Finally, in relation to Ivy's case generally, consistently with s 140 of the Evidence Act 1995 (NSW), when the law requires proof of any fact, the tribunal of fact "must feel an actual persuasion of its occurrence or existence before it can be found": Briginshaw v Briginshaw (1938) 60 CLR 336 at 361; [1938] HCA 34. Background 1. I am satisfied that the following matters have been established. 2. The deceased was born in January 1930, in China, and grew up in the Ukraine. 3. The deceased was married to Boris Savransky. Boris and the deceased were divorced when he died on 30 September 2008. 4. The deceased had one child, Lana Cross, who was Ivy's mother. Sadly, Lana took her own life in September 1996, following unsuccessful neurosurgery for a congenital condition known as Arnold Chiari Syndrome. 5. Ivy lived with her mother and father in Brisbane after her birth. Ivy was about 18 months old at the time of her mother's death. She continued to live, at all times thereafter, with her father (in various locations in Brisbane and regional New South Wales), although there were two or three occasions, between 2000 and 2003, when she visited the deceased and stayed with her for short periods of time. (There was a dispute about the number of occasions that Ivy had visited the deceased.) 6. Ivy did not see the deceased at any time after 2003. 7. In 2009, Mr Shahrouk, the deceased's lawyer, took instructions and drafted the deceased's Will. The Will was executed on 3 June 2009. 8. On 16 March 2017, the deceased was admitted to Westmead Hospital having suffered a stroke. She remained in hospital for a little over two weeks. She was discharged on 4 April 2017. 9. The deceased returned home after she was discharged where she continued to live alone, albeit with some assistance from Meals on Wheels, her friends and a community service to assist her with showering twice a week. 10. On 26 April 2017, the deceased attended the offices of Berala Law Group, without an appointment, on her own, and told Mr Shahrouk that she wished to change her Will. She instructed him to prepare a Power of Attorney and an Appointment of Enduring Guardianship in favour of Emanuela and Adelina. 11. Later, on the same day, the deceased returned to the offices of Berala Law Group with Adelina and Emanuela. The deceased executed the 2017 Will. Afterwards, the Defendants agreed and signed the Power of Attorney and Appointment of Enduring Guardianship. 12. On 28 April 2017, the deceased collapsed at home and was taken to Concord Hospital. Records from that Hospital reveal that, on this occasion, the deceased had suffered a cardiac arrest. 13. On 19 May 2017, the deceased was discharged from Concord Hospital and was transferred to St Joseph's Hospital for end of life care. 14. On 2 June 2017, the deceased was transferred to IRT Berala on the Park, an aged care centre and nursing home. 15. The deceased died on 8 September 2017. Ivy's claim 1. Ivy stated that she was partially dependant on the deceased at various times in her lifetime. 2. Between 2000 and 2003, Ivy travelled to Sydney on three or four occasions to stay with the deceased. Ivy would fly to Sydney and the deceased would meet her at the airport. Each visit would be of between three weeks to a month duration. During these visits, the deceased, naturally, would look after Ivy. They would garden, play music, go the park, cook together, and go to the shops. During this time the deceased bought Ivy a pet rabbit and several goldfish on different visits. Photographs from this period are found in Exhibit IHC-1. 3. Ivy recalled at least three visits to Sydney and possibly a fourth, all of which occurred before 2003: Tcpt, 24 March 2021, p 138(39) - 139(07). 4. The Defendants submitted that Ivy's evidence about her visits to the deceased between 2000 and 2003 should be viewed with caution given her age at the time and that she had relied upon her father, who did not give evidence, for information. Ivy acknowledged difficulties in remembering specific aspects of her visits. 5. The Defendants submitted that the Court should conclude, having regard to the entirety of the evidence, that Ivy only stayed with the deceased twice. Ultimately, I do not think it matters whether the visits were two, three or four in number. She did not have very much contact with the deceased. 6. Ivy stated that during her visits to the deceased's house, the deceased would start calling her Lana. Ivy also noticed the deceased would cry frequently. Ivy stated the deceased would replicate memories and experiences of Ivy's mother with her. For example, she dressed Ivy in her mother's old clothes and completed the same bed time routine that Ivy's mother had completed. Whilst Ivy stated that this sometimes confused her, overall, the deceased was very loving and Ivy enjoyed spending time with her. 7. Ivy remembered meeting neighbours during these visits but could not recall who they were. She admitted that it was possible that she had met the Defendants during one of her visits: Tcpt, 24 March 2021, p 134(18-19). 8. In around 2001, Ivy's father caught chicken pox and the deceased came to Brisbane to take care of Ivy. Ivy's father had told her the deceased stayed for a period of three weeks. 9. The Defendants submitted there was nothing in the evidence regarding the deceased's visit to Brisbane in 2001 which established any dependency of Ivy on the deceased. 10. On one visit to Sydney, the deceased took Ivy to get a haircut. When Ivy returned to Brisbane, her father was upset about the length of the haircut. She recalled that her father spoke angrily to the deceased about the haircut and he had subsequently informed Ivy that this had led to a falling-out between himself and the deceased. 11. It was after this incident, that Ivy's father was said to have not permitted Ivy to visit Sydney to stay with the deceased again. That visit was the last time Ivy saw the deceased. 12. Ivy maintained that whilst she did not see the deceased after 2003, they maintained a close relationship through letters, cards at Christmas and Easter, and regularly speaking on the telephone about once every second month. No letters, cards, or any record of telephone calls were produced in Ivy's case. 13. In re-examination, Ivy stated that her father first forbade her from contacting the deceased in 2003: Tcpt, 24 March 2021, p 145(35-38). Despite this, in an affidavit sworn 21 December 2018, Ivy had stated that, while growing up, she would regularly speak to the deceased by telephone. This involved Ivy's great aunt, Eliza (the deceased's sister, who lived in Brisbane), telephoning the deceased from a public phone box and passing the phone to Ivy. 14. The deceased and Ivy would usually speak for around 5 minutes. Ivy stated the deceased was always very affectionate during these telephone calls and often she would hear the deceased crying. 15. Ivy stated, in cross-examination, that after about 2007, her father, again, forbade her from telephoning the deceased (Tcpt, 24 March 2021, p 140(06-15)) and that as a result she did not do so after 2007 until 2017. 16. Despite no longer being a minor for the last five years of the deceased's life, Ivy did not telephone the deceased. She said she did not do so because she did not want to lose her relationship with her father. In cross-examination, she said that she could not telephone the deceased without affecting her relationship with her father: Tcpt, 24 March 2021, p 140(29). 17. Ivy also said that she had been unable to make telephone calls when her father was not present because she was completing her studies online at home and her social anxiety prevented her from attending the shops alone. She described her father as "always there": Tcpt, 24 March 2021, p 140(31-40). 18. When asked if she considered asking her father to allow her to have contact with the deceased, Ivy said her father "made it very clear that this was not an issue he was going to be moved on": Tcpt, 24 March 2021, p 146(07-10). 19. In 2007, Ivy and her father moved to Jindabyne in NSW. After the move, Ivy did not visit her aunt Eliza again, and, as a result, Ivy no longer made regular telephone calls to the deceased. Eliza died in 2008. However, Ivy stated that the deceased and she continued to send birthday and Christmas cards, flowers, and other small gifts, to each other, on special occasions. The deceased was also said to have sent Ivy regular food packages with biscuits, cakes and clothing three to four times a year. The deceased also sent money orders, usually of $300, about three to four times a year. Again, this evidence is difficult to accept. There is no evidence of how the deceased would have known where to send the cards and letters, although Ivy stated that she usually tried to let the deceased know her new address within a few months of each move (Affidavit, Ivy Hope Chisak, 21 December 2018 at par 49). Her evidence is inconsistent with the evidence of statements made by the deceased to other witnesses about not knowing Ivy's whereabouts and the general lack of contact between them. 20. The last package and money order Ivy received from the deceased was said to be just before Christmas in 2016: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 43. 21. In January 2017, Ivy and her father became homeless and began living in their car in the Jindabyne area. 22. In January 2017, Ivy's father informed her that he had heard rumours the deceased was unwell and had moved to a nursing home. Ivy then attempted to contact the deceased by calling her home telephone number, but the deceased did not answer. She then tried to contact the local Russian Orthodox Church, multiple hospitals and nursing homes to locate the deceased, without success. Ivy stated that after she could not make contact with the deceased at the time and "there was not much more that I could do and waited for the deceased to call me": Affidavit, Ivy Hope Chisak, 21 December 2018 at par 136. 23. In answer to a question from the Bench, Ivy stated that, on that occasion, she had telephoned the deceased using her father's mobile telephone, that he was aware she was using it to contact the deceased, and that he did not attempt to stop her from doing so, despite not being happy about it: Tcpt, 24 March 2021, p 154(39) - 155(01). 24. In September 2017, Ivy received a call, on her father's mobile telephone (which, by then, she shared with him), from a lady whose voice she did not recognise. The woman informed Ivy that her grandmother had died and provided details of the deceased's funeral. Ivy stated that, as she was suffering from pneumonia at the time, her father was unwilling to drive her to Sydney, and she had been unable to attend the funeral. 25. Ivy did arrange to send flowers to the funeral at Rookwood Cemetery. A receipt of this transaction can be found at Ex D2. Ivy called Rookwood cemetery sometime afterwards to confirm the flowers had been delivered. She stated she continues to feel upset by the fact that she did not attend the deceased's funeral. 26. Ivy was unaware about much of the deceased's life. She did not know about the existence of the Defendants, or any beneficiaries named in the 2009 Will and the 2017 Will, despite them being active participants in the deceased's life for many years. 27. It is extremely difficult to, and I do not, accept some of Ivy's evidence. In parts, it is inconsistent. For example, it is said that Ivy's father forbade her from having contact with the deceased, but she says that she did so with the assistance of Ivy's great aunt who assisted Ivy in making telephone calls to her. This does not seem to have affected Ivy's relationship with her father. 28. Then, after Ivy became an adult, it is impossible to believe that there were no occasions when she would have been able to contact the deceased, by telephone, or otherwise. She justified this by stating that between 2012 and 2017 there had been no occasion when she had not been out of the presence of her father: Tcpt, 24 March 2021, p 140(44-48). This hardly seems plausible. The Beneficiaries 1. I turn next to the beneficiaries named in the 2017 Will. Whilst counsel for Ivy did not invite any adverse credit findings against the Defendants, or other witnesses who were close to the deceased, she submitted that the evidence of the Defendants and other lay witnesses regarding the deceased's "quick" recovery after the stroke should be viewed with caution in light of the speech pathologist's report and their fiscal interests in the 2017 Will. 2. The evidence of all of the witnesses who were close to the deceased and who had close contact with the deceased, both before, and after, she suffered her stroke, was consistent. I was very impressed with each of them, even remembering that she is a beneficiary named in the 2017 Will. I am satisfied that each of them gave a truthful account of her interaction, respectively, with the deceased, and that each gave accurate evidence about her observations of, and conversations with, the deceased, both before and after she suffered her stroke. None of the evidence was seriously challenged in cross-examination. In any event, it had the ring of truth to it. I accept the evidence of each of the beneficiaries. 3. Over the years, the deceased would come over to the Presot home regularly and join the Presot family for special occasions such as Christmas, Easter and Mother's Day. 4. For the last 15 years of her life, the deceased was assisted by Emanuela with general tasks. Emanuela would also take the deceased shopping and to medical appointments. 5. Emanuela stated that over the years the deceased spoke to her about Ivy, usually saying that she was disappointed that Ivy did not contact, or visit, her. 6. Emanuela met Ivy once, when Ivy was about four or five years old. The deceased and Ivy were walking past the Presot home and stopped in when they saw Adelina. 7. In March 2017, Emanuela visited the deceased in hospital on the afternoon she had her stroke. She noticed the deceased's mouth was slightly drooped to the side and her speech was slurred: Tcpt, 23 March 2021, p 99(03-04); Affidavit, Emanuela Presot, 1 July 2019 at par 2. 8. Emanuela stated that the deceased recognised her and smiled. She also noted that the deceased appeared to understand her questions and would respond by nodding her head. 9. Emanuela visited the deceased in hospital nearly every day after work. 10. Emanuela drove the deceased home from Westmead Hospital after her stroke. She arranged a medical alert button for the deceased and assisted her with the paperwork for her ongoing medical care. 11. On her return home, the deceased continued to live alone, with some assistance from others. Emanuela visited the deceased after work nearly every day and would assist with groceries and shopping. 12. Emanuela and Adelina then organised for the deceased to receive Meals on Wheels for a short time. In cross-examination, Emanuela stated "We had spoken with her about that and she was happy for that to occur because, just to give her a chance to settle back into home": Tcpt, 23 March 2021, p 99(28-29). 13. During April 2017, once the deceased had returned home, Emanuela found the deceased's speech improved to the extent they could have proper conversations in which the deceased was capable of expressing her feelings, needs and wants: Affidavit, Emanuela Presot, 1 July 2019 at par 8. 14. On multiple occasions, the deceased asked Emanuela to be her attorney and guardian. In 2017, the deceased said to Emanuela "I would now like to formalise the arrangement for you to be my guardians so I'm going to organise an appointment with Berala Law Group": Affidavit, Emanuela Presot, 1 July 2019 at par 9. 15. In the afternoon, on 26 April 2017, Emanuela attended to Berala Law Group to sign the acceptance of attorney and guardian. Emanuela could not remember if she drove the deceased to the solicitor in the morning: Tcpt, 23 March 2021, p 100(07-25). 16. At the appointment, Emanuela was unaware that the deceased was also changing her Will. Nor did she know the details of the revised Will: Tcpt, 23 March 2021, p 100(38-43) & 101(01-03). 17. After the appointment, Emanuela knew she was an executor of the deceased's Will but she was unaware that she was a beneficiary until after the deceased's death. 18. When the deceased was admitted to Concord Hospital, Emanuela would visit daily with Adelina and Linda. The deceased was then transferred to St Joseph's Hospital and Emanuela and Adelina subsequently arranged to have the deceased transferred to IRT Berala on the Park Nursing Home. 19. Emanuela assisted the deceased with the documentation for Centrelink and the nursing home under the full instructions of the deceased. 20. When the deceased was sick, Emanuela stated she asked the deceased regularly if she would like her to contact Ivy, which the deceased declined saying "No, I don't want her to be contacted": Affidavit, Emanuela Presot, 19 March 2019 at par 12. 21. Emanuela gave evidence that she suffers from atrial fibrillation (abnormal heart rhythm). She also takes medication to maintain a steady heartbeat and blood thinners. 22. The deceased would also often visit Adelina's home and join her family for special occasions such as Easter, Christmas and Mother's Day. 23. For the last 15 years of the deceased's life, Adelina would drive the deceased to do her shopping, banking and other errands. Adelina would also take the deceased to medical and hospital appointments and visit her while she was in hospital. 24. Adelina remembers Ivy staying with the deceased for a couple of weeks, when Ivy was about 4 or 5 years-old. Adelina met Ivy for the first time during this visit. 25. Adelina stated that Ivy came for a second visit to the deceased's home a few years later. The deceased and Ivy stopped by Adelina's house on the way to the park on two occasions. She also remembered that the deceased had bought Ivy a rabbit on one of the visits. 26. Adelina disputed that Ivy came to stay with the deceased on three or four occasions between 2000-2003. Adelina stated that she had a clear memory of Ivy visiting twice. During this period, Adelina was regularly seeing the deceased who she says was, typically, very excited, when Ivy came to visit and that she would speak to Adelina often about it: Affidavit, Adelina Presot, 1 July 2019 at par 20. 27. Adelina stated in cross-examination that the deceased "would always tell me she [Ivy] was waiting for her": Tcpt, 23 March 2021, p 85(25). 28. The deceased would often speak to Adelina about Ivy and expressed her disappointment that Ivy would not contact her. Adelina said the deceased said words to the effect "Ivy never rings me and she never comes to see me": Affidavit, Adelina Presot, 19 March 2019 at par 18. 29. Adelina confirmed in cross-examination that from her observations it was clear the deceased loved Ivy very much: Tcpt, 23 March 2021, p 85(35-39). 30. On 16 March 2017, Anna telephoned Adelina and asked her to come over to the deceased's house as the deceased seemed unwell. When Adelina arrived, the deceased was sitting up and trying to speak but "she couldn't speak properly": Tcpt, 23 March 2021, p 85(50). Anna and Adelina agreed the deceased needed to go to the hospital. Either Anna or Adelina called an ambulance, which took the deceased to Westmead Hospital. 31. When Adelina arrived at the hospital later that day, the deceased's speech was slurred. Adelina visited the deceased in hospital nearly every day. 32. Adelina asked Emanuela to take the deceased home from the hospital when she was discharged on 4 April 2017. 33. Adelina stated that, after the deceased's discharge from hospital a speech therapist would come to help the deceased. She could not recall for how long the therapist was seeing her (Tcpt, 23 March 2021, p 86(27-28)) but stated that the deceased was no longer seeing a speech pathologist by 26 April 2017 (Tcpt, 23 March 2021, p 87(44)). 34. Adelina admitted that by the end of April 2017, the deceased's speech was a "little bit" impaired "but her mind was fine": Tcpt, 23 March 2021, p 87(46-49). Specifically, her speech was slightly altered due to a deformity on the left side of the deceased's face caused by the stroke: Tcpt, 23 March 2021, p 89(07-13). 35. Adelina continued to visit and telephone the deceased everyday once she returned home. Adelina would also cook for the deceased until the Meals on Wheels service was arranged. After a short time, the deceased started going to the shops with Adelina to do her groceries and banking. Adelina stated that the deceased did not really need the help as "she could cope on her own" but her and her children offered to help "because we were afraid, so to help her": Tcpt, 21 March 2021, p 88(28-33). 36. Adelina noted that the deceased was an avid reader and would often read English and Russian books she had picked up from the knitting club. Adelina observed the deceased to still be reading books in April 2017: Tcpt, 23 March 2021, p 89(49) - 90(21). 37. Many years before her stroke, the deceased had asked Adelina to be her guardian and attorney, saying "I trust you". After the stroke, the deceased asked again and Adelina agreed. On 26 April 2017, she attended the offices of Berala Law Group to sign the acceptance of those positions. 38. Adelina stated that she knew she was an executor of the 2017 Will but was not aware that she was a beneficiary: Affidavit, Adelina Presot, 19 March 2019 at par 21; Tcpt, 23 March 2021, p 81(46-48) and p 82(05-06). 39. Adelina stated that, on the day she and the deceased went to sign the papers, she observed the deceased to be communicating clearly: Affidavit, Adelina Presot, 1 July 2019 at par 15. 40. In 2017, Adelina asked the deceased a number of times if she wanted her to contact Ivy. The deceased replied on each occasion that she did not want Ivy to be contacted. 41. Sometime later, the deceased suffered a heart attack and was admitted to Concord Hospital. Adelina would visit her daily. The deceased was then transferred to St Joseph's Hospital in Auburn for palliative care. Adelina subsequently arranged with her daughter, to transfer the deceased to IRT Berala on the Park nursing home to provide her with better care. 42. Adelina gave evidence that she has suffered two heart attacks in the last 7 years and in May 2019 had surgery for varicose veins in both her legs from which she was still recovering. Adelina also suffers from an irregular heartbeat, high blood pressure and vertigo. Adelina is a full time carer of her husband, who suffers from a variety of health issues. 43. Linda had known the deceased for over 40 years and described the deceased as an "integral part of our family unit": Affidavit, Linda Presot, 21 March 2019 at par 7. The deceased would often participate in family events such as Christmas, Easter and Mother's Day. She was also a regular visitor to the Presot home. 44. Linda, with other family members, assisted the deceased with general tasks over the last 15 years. These included taking her to appointments, to the shops and in buying groceries for her. 45. Linda stated that the deceased often spoke to her about Ivy and how Ivy did not call, or contact, the deceased. Linda stated that the deceased appeared sad and depressed when she spoke about Ivy. 46. Linda met Ivy when the deceased introduced her whilst walking passed the Presot's house towards the park. This was the only time Linda ever saw Ivy: Tcpt, 23 March 2021, p 94(14); Affidavit, Linda Presot, 1 July 2019 at par 7. Linda recalled the deceased saying on this occasion that she had bought Ivy a rabbit. 47. Linda visited the deceased in hospital within 24 to 48 hours of her stroke and a number of times after that. She stated that, on her first visit to the hospital, that the deceased's speech was interrupted, although it seemed that she could understand what Linda saying as she would nod when asked questions. 48. When Linda would visit the deceased at her home in April 2017, she stated the deceased "responded and expressed herself clearly": Affidavit, Linda Presot, 1 July 2019 at par 3. Linda stated that the deceased's speech was only impaired for a short time before it improved and returned to normal: Tcpt, 23 March 2021, p 96(45-46). 49. In cross-examination, Linda said that, following the stroke, the deceased's mouth drooped down slightly: Tcpt 23 March 2021, p 96(25-29). 50. Linda stated that the deceased had some assistance once she returned home from the hospital including Meals on Wheels, follow-up therapies arranged by the hospital, and someone to assist her to shower. She stated that despite that assistance, the deceased was "mobile, lived alone and maintained her independence" and even "continued her favourite pastimes of reading and knitting": Affidavit, Linda Presot, 1 July 2019 at par 4-5. 51. Anna gave Linda Ivy's mobile telephone number and it was Linda who telephoned Ivy to inform her that the deceased had died and to advise her of the funeral arrangements. 52. Linda gave evidence that she also suffers from atrial fibrillation for which she has had to seek treatment multiple times. 53. Anna and the deceased were close friends for over 40 years. Their children grew up together and they were both members of the Russian knitting club, of which the deceased was president. 54. The deceased would often speak to Anna about Adelina and her time with the Presot family during festive periods. 55. The deceased spoke to Anna regularly over the years about Ivy. In cross-examination, Anna stated the deceased talked "about Ivy practically every time and she was worrying about her and she hoping that she could ring her or talk to her, write letter to her": Tcpt, 24 March 2021, p 118(44-46). 56. The deceased often said to Anna words to the effect of "I am very disappointed about Ivy" and "I am depressed and upset that my granddaughter will not visit me or make any contact with me. Why does she never call me or see me?": Affidavit, Anna Savateev, 15 March 2019 at par 9. 57. Anna also recalled the deceased saying words to the effect "I am particularly disappointed in Ivy because I often send her a gift on her birthday or Christmas but this has not helped. She still does not see me": Affidavit, Anna Savateev, 15 March 2019 at par 10. 58. Anna was aware that the deceased would send Ivy gifts and packages. The deceased did not tell Anna that Ivy was having financial problems and if the packages were for that purpose. The deceased told Anna that she wanted Ivy "to have a present…remind her…there is a grandmother": Tcpt, 24 March 2021, p 119(29-30). 59. The deceased mentioned Ivy's father to Anna on a few occasions. The deceased told Anna that Ivy's father was not very good to her and had caused her offence: Tcpt, 24 March 2021, p 120(04-06). 60. From Anna's observations, the deceased was unaware of any reason why Ivy did not contact her. However, the deceased continued to hold out hope that when Ivy was older she would contact her: Tcpt, 24 March 2021, p 122(41-43). 61. Anna met Ivy on two occasions. The first occasion was when Ivy was about five years old and she stayed with the deceased for about two weeks. The deceased did not tell Anna about any visits other than those two. 62. Anna recalled that the deceased went to Brisbane in around 2001. Anna stated that after the visit, the deceased appeared distressed and said "I can't stay with them at their place. Ivy's father is such a bad man. I had to rent alternative accommodation whilst I was there": Affidavit, Anna Savateev, 2 July 2019 at par 12. 63. Anna arrived at the deceased's home the day of her stroke on 16 March 2017. Anna called Adelina to come over and together they called the ambulance. The ambulance took the deceased to Westmead Hospital. Anna arrived shortly after and stayed with her for the next two days. 64. Anna visited the deceased at the hospital every day after her stroke. Anna recalled that in the first few days after the stroke, the deceased had slurred speech and struggled to speak easily. However, the deceased could recognise Anna and appeared to recognise other visitors. 65. Anna stated that after about two weeks, the deceased was speaking quite easily again. 66. Anna and the deceased would mostly speak in Russian to each other but Anna maintained that the deceased spoke very good English both before and after the stroke: Tcpt, 24 March 2021, p 126. 67. Anna recalled the deceased had a slight disfiguration of the mouth whilst she was in hospital after the stroke but stated that she recovered from it: Tcpt, 24 March 2021, p 124(11). 68. After the deceased was discharged, Anna offered to cook and bring the deceased food, but the deceased refused, saying "I don't want you to cook for me. I want to be independent. I wish to arrange everything including meals on wheels, homecare and someone to mow the lawns": Affidavit, Anna Savateev, 15 March 2019 at par 14. 69. Anna visited the deceased every day after she came out of hospital. 70. When the deceased was ill, Anna offered to try and contact Ivy but the deceased refused saying "No, I don't want to see her now that I am at the end of my days": Affidavit, Anna Savateev, 15 March 2019 at par 15. When the deceased was moved to the nursing home, Anna again asked the deceased if she would like her to contact Ivy, which she refused. 71. Anna stated in cross-examination that in "the end she just, I think, gave up and she didn't want to [be] upset more than she was": Tcpt, 24 March 2021, p 127(16-17). 72. Anna was unaware of her entitlement to receive a part of the deceased's estate before the death of the deceased, even though the deceased did say to her, on a number of occasions, words to the effect "You have always been a god [sic] friend to me. I will leave you something in my Will": Affidavit, Anna Savateev, 15 March 2019 at par 17. 73. Anna stated that the deceased was able to clearly communicate until she died. Anna noted that she and the deceased would often talk about the past and the deceased maintained a good memory after her stroke. 74. The observations of each of these close friends concerning the deceased's ability to converse, is consistent with the evidence given by Mr Shahrouk, to whose evidence I shall next refer. The execution of the 2009 Will 1. In around May 2009, the deceased came to Berala Law Group office to change her Will. The deceased had been an existing client of Berala Law Group but was unaware that Mr Shahrouk was working for the firm. Mr Shahrouk took instructions from the deceased on drafting her Will. 2. Mr Shahrouk did not produce a file note for the 2009 meeting. He explained: "There is a file but the file would have been destroyed because we don't hold files that are over seven years old. So most likely there's a file note that no longer exists": Tcpt, 23 March 2021, p 45(39-41). 1. Whilst taking instructions from the deceased, Mr Shahrouk stated she said words to the effect: "Upon my death I want my house to be sold. I want to leave my estate to my granddaughter as she is my only relative. I am very upset with her as I have not seen her for so long and she does not contact me. But she is my blood and she should have it, I also want to leave something to my friends who have helped me": Affidavit, Jihad Shahrouk,12 March 2019 at par 8. 1. Mr Shahrouk stated in cross-examination that he "just remember[s] she [the deceased] was very upset with her (granddaughter)": Tcpt, 23 March 2021, p 45(03)-(05). 2. Mr Shahrouk then drafted the 2009 Will in accordance with those instructions. 3. In cross-examination, Mr Shahrouk could not recall, in relation to the 2009 Will, whether he discussed with the deceased her property or other potential bounty: Tcpt, 23 March 2021, p 46(27-38). 4. On 3 June 2009, the deceased attended Mr Shahrouk's office and signed the Will, which was witnessed by Mr Shahrouk and Narelle Kinsey, an employee of Berala Law Group. 5. As stated, there was no dispute about the validity of the 2009 Will, other than it was revoked by the 2017 Will. The 2017 Will 1. On 26 April 2017, the deceased attended on the office of the Breala Law Group, without an appointment, to give instructions for a new will, power of attorney and appointment of an enduring guardian. 2. Mr Shahrouk took the deceased into his office where, first, he confirmed the deceased's name and address and went through "what she actually wanted": Tcpt, 23 March 2021, p 70(40-48). 3. Mr Shahrouk said the deceased told him that she had been in hospital and that she was upset that her granddaughter had not contacted, or visited, her. She said she wanted to change her Will and wanted him to prepare a Power of Attorney and Appointment of Enduring Guardianship, appointing her friends: Affidavit, Jihad Shahrouk, 12 March 2019 at par 12. 4. After 5 to 10 minutes of discussions with the deceased, Mr Shahrouk printed out a copy of the deceased's 2009 Will and went through it with the deceased, who then provided instructions as to what she wanted to retain, to omit and to add to her new Will. 5. Mr Shahrouk stated, in cross-examination, that he could not recall whether, at this meeting, he had specifically discussed with the deceased what property she owned – including if she possessed any bank accounts or other assets: Tcpt, 23 March 2021, p 49(47) and p 52(23-32). 6. Mr Shahrouk stated in cross-examination he already "knew she [the deceased] owned XX Beatrice Street, Lidcombe": Tcpt, 23 March 2021, p 49(24-25) as "she told me herself nothing had changed so I assumed she, she still owned XX Beatrice, and that was all she owned": Tcpt, 23 March 2021, p 50(18-19). 7. When asked why he did not include the statement that "nothing had changed" in his affidavit or in his file note, he said that the deceased was not referring here to the disposition of property but to the address details, which he did not think there was a need to include: Tcpt, 23 March 2021, p 51(05) and (09-10). 8. Mr Shahrouk reiterated that he "took instructions according to what was in the 2009 [W]ill and we just ticked off what was the remain [sic] [and] … crossed off what was to come out and left what was to remain": Tcpt, 23 March 2021, p 50(26-30). 9. Mr Shahrouk stated the deceased said words to the following effect: "I would like to give a share to my close friends as they have helped me. They have always been around to assist me in what I need. They take me to my appointments, help around the house and help with the shopping": Affidavit, Jihad Shahrouk, 12 March 2019 at par 13. "I do not want to leave Ivy totally out of the will as she is my granddaughter": Affidavit, Jihad Shahrouk,12 March 2019 at par 14. 1. The deceased then asked Mr Shahrouk to add in the addresses of her friends to the Will. 2. The file notes of this meeting are extremely concise and include some handwritten notes and a marked up copy of the 2009 Will. A full copy of the file was included as Ex JB2/348-350: "Lily Savransky Emanuela + Adelina Presot al executors. Will same to buried a Rookwood, Rookwood cemetery, Sell my property Emanuela, Adelina, Linda Presot, Anna Savateev, Ivy hope [sic] Chisak in equal shares as TIC." 1. Mr Shahrouk confirmed that "TIC" (tenants in common) is his own reference and what the deceased actually told him was words to the effect of "I want to give them [beneficiaries] each a share, a share equally": Tcpt, 23 March 2021, p 55(37) and p 60(12-13). He also described it as an "oversight" that he did not include the percentage of each gift in his affidavit: Tcpt, 23 March 2021, p 55(20-21). 2. Ivy submitted that the deceased only said she wanted her friends to "share" in her estate and the word "equally" arose in Mr Shahrouk's cross-examination. She also submitted that Mr Shahrouk's file note reveals his assumption of what the deceased wanted, and, in fact, was not what she had said: Tcpt, 30 March 2021, p 227(12-18). 3. Ivy accepted that whilst the period of estrangement between herself and the deceased lengthened between the 2009 Will and 2017 Will, she submitted what is "pertinent" is that in the 2009 Will, despite the deceased expressing dissatisfaction with Ivy, it was Ivy who was Ivy who was the major beneficiary of the estate: Tcpt, 30 March 2021, p 224 (14-35). 4. Ivy pointed out that in Clause 4 of the 2017 Will, the funeral instructions changed from a simple service (in the 2009 Will), to a funeral service at the Russian Orthodox Church in Strathfield and burial at Rookwood cemetery. Mr Shahrouk's file note, and affidavit, made no reference to a Russian Orthodox Church service. Mr Shahrouk explained that "when I take instructions I, I do have a good memory, so it may be that I just didn't write it down": Tcpt, 23 March 2021, p 59(29-30). 5. The deceased mentioned to Mr Shahrouk that she had been in hospital but he could not recall if he asked the deceased what she had been in hospital for. He did not ask her whether it was for a physical or cognitive issue: Tcpt, 23 March 2021, p 63(33-44). 6. There was the following exchange between counsel for Ivy and Mr Shahrouk regarding his usual practice in this situation (at Tcpt, 3 March 2021, p 64(18-21): "Q: Is part of your practice ordinarily if an 87 year old client comes to you off the street and says without an appointment 'I've been in hospital. I have to make a will', would you ordinarily ask 'What you're in hospital for?' A: No, I don't". 1. While not a part of his usual practice, Mr Shahrouk stated that, as the deceased was a neighbour, he should have asked about her hospital stay: Tcpt, 23 March 2021, p 64(27). 2. Mr Shahrouk was unaware that two days after the 2017 Will was signed, the deceased suffered a heart attack: Tcpt, 23 March 2021, p 64(37-39). 3. Mr Shahrouk could not recall explaining to the deceased about any potential claim Ivy may have under the Succession Act due to the change in disposition between the 2009 Will and the 2017 Will: Tcpt, 23 March 2021, p 66(33-38). 4. Mr Shahrouk did not ask why the deceased wanted Ms Onis removed as a beneficiary in the 2017 Will: Tcpt, 23 March 2021, p 67(48) - 68(09). 5. After going through the 2009 Will with the deceased, Mr Shahrouk then took instructions on the preparation of power of attorney and the appointment of enduring guardian naming Emanuela and Adelina. The file note for this conversation is found in Ex JB2/353: "Lily Savransky XX Beatrice Street Lidcombe 9646 XXXX EPOA Emanuela Presot – XX Beatrice Street Lidcombe Adelina Presot – XX Beatrice Street Lidcombe Jointly & severally EG – machinery to be turned off." 1. Mr Shahrouk then made an appointment for the deceased later that day to sign the Will, power of attorney and appointment of enduring guardian documents. Mr Shahrouk mentioned to the deceased that he would need to explain the documents to the chosen guardians and attorneys in person and the deceased agreed to bring them in with her when she returned: Tcpt, 23 March 2021, p 71(30-32) and 72(34-36). 2. Mr Shahrouk then prepared the documents in accordance with the deceased's instructions. 3. About three or four hours later, the deceased attended Mr Shahrouk's office with Emanuela and Adelina. Initially, Emanuela and Adelina remained in the reception area and the deceased met with Mr Shahrouk in his office alone. (The fact that she did suggests that the deceased understood the advice given to her by Mr Shahrouk about the need for explanation). 4. The deceased asked to read the Will before she signed it. Mr Shahrouk gave the Will to the deceased to read and said "let me know if you don't understand anything": Affidavit, Jihad Shahrouk, 12 March 2019 at par 27. The deceased proceeded to read the Will for a few minutes. She then said words to the effect of "Good boy, you have put down the house is to be sold and you have put down the addresses of my friends, I am happy to sign this will": Affidavit, Jihad Shahrouk, 12 March 2019 at par 28. 5. Mr Shahrouk then called Peter Wilson, a colleague, into his office, to act as a second attesting witness. The deceased signed the Will in front of Mr Wilson and Mr Shahrouk. 6. Once the Will was signed, Mr Shahrouk called Adelina and Emanuela into his office. The deceased remained in the room. He proceeded to explain the power of attorney and guardianship documents. He gave them the documents to read and told them to "let me know if you don't understand anything": Affidavit, Jihad Shahrouk, 12 March 2019 at par 33. 7. Mr Shahrouk stated that the deceased, Adelina and Emanuela appeared to understand the documents and each then signed them in his presence. 8. The conversations between Mr Shahrouk and the deceased took place in English. Mr Shahrouk stated that on 26 April 2017 he saw no evidence of slurred speech in the deceased and described her "as sharp as a tack": Tcpt, 23 March 2021 p 64(41) – 65(4). 9. He said in response to the Court's request for clarification of the phrase "sharp as a tack": "She was certain in what she wanted. You wouldn't have realised she was actually in hospital had she not told me, and she was as sharp as she was when I saw her in 2009": Tcpt, 23 March 2021, p 72(22-25): 1. In April 2017, around 30% of Mr Shahrouk's work within his practice was related to the preparation of Wills. 2. Ivy submitted the evidence of Mr Shahrouk is "less than satisfactory" due to the missing file note and the "opaqueness and lack of specificity…as to what the deceased truly wanted, so as to be satisfied that the deceased knowingly approved the contents of the 2017 Will". 3. Ivy also submitted that Mr Shahrouk's evidence of his instructions were unsatisfactory in light of Campbell JA's observations in Doulaveras v Daher (2009) 253 ALR 267; [2009] NSWCA 58 at [64]: "…However, a difficulty in placing much weight on the views that the two solicitors formed is that there is no detail before the court of the basis upon which they formed their views. A solicitor who gives a detailed and careful explanation to someone sitting on the other side of the desk might form the view that that person understood the transaction if the person remained silent during the explanation, looked at the solicitor during it, periodically nodded, and when asked at the end whether all that had been understood, also nodded. Alternatively, a solicitor might form that view on the basis that the person on the other side of the desk periodically asked questions that related to the subject matter. In the first of those situations, if the person on the other side of the desk had, unbeknown to the solicitor, a serious deficiency in brain functioning, the solicitor's conclusion might not be a reliable one, however honestly it may have been arrived at. In the present case, the evidence does not disclose on what basis Mr Hourigan and Mr Smith arrived at their respective views." 1. The Defendants submitted that the circumstances in Doulaveras v Daher were very different, because Mr Shahrouk, unlike the solicitors in that case, gave a significant amount of detail about his interactions with the deceased: Tcpt, 30 March 2021, p 258(33-38). 2. There is some merit in the submissions made on behalf of Ivy in respect of Mr Shahrouk's evidence. However, the deceased was known to Mr Shahrouk at the time he saw her in 2017. He had prepared the 2009 Will and had been her neighbour. Furthermore, the instructions given for the 2017 Will were extremely simple. More importantly, the instructions appeared to have been rational, considering the beneficiaries mentioned were people, all of whom had a claim on her bounty. 3. It is also important to remember that the deceased was able to weigh up that, even though she had not seen Ivy, her grandchild, for over 14 years, Ivy was her grandchild and her next of kin. 4. I have carefully considered the evidence of Mr Shahrouk. It must be remembered that the events occurred about 4 years prior to the hearing. Importantly, I formed the view that in giving his evidence, he was being extremely careful to give evidence of what he actually remembered at the time he made his affidavit and when he was cross-examined. Whilst his notes could have been more detailed, I am satisfied that he considered the deceased's capacity and was satisfied, by the nature of her instructions and the simplicity of those instructions, that she was able to give instructions for, and execute, the 2017 Will. 5. I also accept that he was entitled to conclude that the deceased wanted to divide her estate equally between the beneficiaries that she named. She did not suggest otherwise and did not disclose a greater obligation to one rather than another. 6. It is also clear that the deceased appeared to Mr Shahrouk to read the 2017 Will before she signed it. His evidence on this topic was not the subject of any challenge. Medical Evidence 1. The medical evidence relied upon consisted of a copy of the medical notes from Spring Life Medical & Health Clinic of Dr Nirmala Chrishanthan, the deceased's treating general practitioner; the contemporaneous and other medical reports; and the expert affidavit and oral evidence, of Dr Wijeratne and Associate Professor Rosenfeld (neither of whom treated, or saw, the deceased). Only the latter two medical experts was called. None of the note takers was called to give evidence and each of the experts gave evidence based on the documents tendered and affidavits read and observations of others. 2. The deceased's patient history (Ex JB2/8) shows she suffered from: "Vitamin D deficiency Hyperlipidaemia Moderate aortic stenosis Depression Hypertension 07/10/2008 Excision of right breast lesion 14/09/2011 Thyroidectomy" 1. Dr Wijeratne stated that the deceased's diagnosed conditions include "vascular risk factors", which increase the risk of underlying cognitive impairment: Tcpt, 24 March 2021, p 175(40-48). Whilst he acknowledged the deceased received no contemporaneous diagnosis of dementia or mild cognitive impairment, he said that there are numerous reasons why this could be the case, including the lack of expertise in the general practitioner, and other medical, practitioners, in the detection of dementia and mild cognitive impairment: Tcpt, 24 March 2021, p 176-177. 2. On 16 March 2017, the deceased was admitted to Westmead Hospital after suffering a stroke. 3. The speech pathologist reports, a copy of some of which is in evidence, include amongst other things: 1. For 16 March 2017 (Ex JB2/111): "…Sudden onset aphasia; R sided facial droop… OIE: Pt alert, Suib, cooperative, consent, doctor present. Communication: not consistently following commands, unable to count, fluent spontaneous speech, [illegible] no meaningful content, unable to state name, unable to name objects, unable to copy SP (vowels as single words)." 1. For 21 March 2017 (Ex JB2/170-171): "commenced informal language screen this am – will cont same this pm - improving but cognitive and language issues persist…" "Nil overt signs of dysphagia ATOR" 1. For 29 March 2017 (Ex JB2/227-229): "Impression: Pt's communication is improving n/e moderate word finding difficulties persist. Pt has good insight into this." 1. For 28 April 2017 (visit occurred on 27 April 2017)(Ex JB2/332-335): "Pt alert, orientated, consented, Pt reporting managing well since home generally. Also noted adequate speech for needs although when questioned more pt reporting not at baseline c [sic] communication. … • Pt able to name 23/30 objects/activities when visually presented (76%). • Noted ↑ time to find word at times • Noted occasionally pt able to describe I however predominently [sic] relied on SP to prompt some when unable to name. • Noted semantically related responses at times; pt aware incorrect but unable to correct I …. Pt appeared to understand concept c SP explanation (verbal) and visual cue card. SP provided picture cues as able. Pt able to describe location, appearance SP Cont: - Function and category for common objects & clinician prompting. Pt had ↑ difficulty describing appearance accurately particularly in regards to material. … Pt able to retain and repeat 2 word phrases – 6/10 3 word phrases – 7/10 4 word phrases – 2/5 Pt producing word substitutions and adding extra words particularly for longer phrases. Noted hesitations and repetition of which pt aware but not always able to self- correct accurately. Benefited from repetition of target. … Note: towards end of hour long session Pt reporting fatigue throughout session also note vague C ↓ content. Pt using semantically related but incorrect words substitutions at times. Pt also disclosing less desire for Rx now at home, noted too busy to have visit too often. Also noted difficulty c English reading and no family or friends to practice tasks… … Impression: Pt cont to present c an aphasia c aspects of cognition also impacting communication … pt functional for needs at home, feels communication c medical staff and friends adequate. Also has been speaking via phone (mainly in Russian). …" 1. Ultimately, counsel for Ivy accepted that this report was of equal significance to Mr Shahrouk's evidence as both go to the day to day state of the deceased (Tcpt, 30 March 2021, p 230(46) and 231(01)). However, he submitted that the report should be considered to be "highly informative" of the deceased's cognitive ability the day before, and after, the Will was made and it should cause the Court to treat Mr Shahrouk's evidence as to the deceased being "sharp as a tack" with great caution: Tcpt, 30 March 2021, p 226(26-31); Plaintiff's Closing Submissions at par 11. 2. Counsel also submitted that it was suspicious that one day after making the 2017 Will, the deceased told the speech pathologist she had no friends to practice with, when the Defendants were shown to be close friends who communicated with the deceased in English. 3. For the Defendants, it was submitted that the speech pathologist's evidence should be considered bearing in mind: 1. Firstly, the speech pathologist had no specialised knowledge in assessing cognition, and if the report was relied upon, the author's opinion, without it being tested, about the deceased's cognition should be given very little weight. Reliance was placed on Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65, in which the Court of Appeal gave a social worker's evidence regarding a deceased's cognition little weight because of a lack of relevant expertise: Tcpt, 30 March 2021, p 257(01-19); 2. Secondly, the speech pathologist had noted that towards the end of the hour-long session the deceased was "reporting fatigue". This fatigue may have influenced her responses and should be considered in light of the concept that capacity is situational and can change; 3. Thirdly, there was no evidence as to the complexity of the words on the cue cards or the size of the font. Even if the deceased experienced difficulty with reading English on the cue cards that did not mean that she was unable to read, or understand, the 2017 Will the day before. 1. Whilst in hospital, the deceased was administered a RUDAS examination on an unspecified date on which she scored 21/30 (Ex JB2/254-256). The deceased was also administered two MoCA examinations. One MoCA examination was administered in English on 20 March 2017, on which the deceased scored 2/30 (Ex JB2/260). The second MoCA test was administered on an unknown date in Russian, on which the deceased scored 8/30 (Ex JB2/255). 2. There was debate between the experts about when the second MoCA test would have likely been administered. Associate Professor Rosenfeld stated that because of the need for a Russian interpreter and the fact that the medical evidence suggests only one exam was done with an interpreter, there are mitigating circumstances which suggested it is more likely they were done in proximity to each other because of the urgency to confirm the first set of results: Tcpt, 24 March 2021, p 171(04-14). 3. Dr Wijeratne disagreed, stating "common sense would have dictated that the clinician would have repeated this closer to discharge than [sic], than closer to the first administration of the test": Tcpt, 24 March 2021, p 167(06-08). 4. Dr Wijeratne stated in cross-examination that the RUDAS and MoCA tests were not interchangeable. He noted that the RUDAS was developed for people from non-English speaking or culturally linguistically diverse backgrounds and "is not as sensitive as the MoCA": Tcpt, 24 March 2021, p 159(21-25). 5. In comparison, he stated that the MoCA is "recognised to be [a] far more sensitive and more valid instrument for determining cognitive impairment and executive function": Tcpt, 24 March 2021, p 159(26-27). He also thought it worthwhile to note that the MoCA was administered to the deceased in Russian, her first language. There was no evidence to suggest a Russian interpreter was used for the RUDAS examination. 6. The following exchange occurred with Dr Wijeratne, concerning the relevance of the language used to administer these tests: "DR LUCY: …I'm not suggesting that it's wrong that someone would perform the test better in say Russian, if they were native Russian than English, but isn't it the case that if you had a stroke and your speech is affected then it's going to be affected in every language and that will compromise the validity of the MoCA or RUDAS test? WITNESS WIJERATNE: It will obviously affect it to some degree in any language, but obviously the effects of that are minimised by use of the first language…": Tcpt, 24 March 2021, p 165(20-28). 1. Dr Wijeratne stated in cross-examination that "a normal score on the MoCA is 26. So, even with that apparent improvement of five points, her second score of 8 was well below the accepted normal range": Tcpt, 24 March 2021, p 160(24-26). 2. Associate Professor Rosenfeld highlighted the limiting and misleading nature of both tests if used in an inappropriate way. In cross-examination he stated that the tests were not to be used "in acute illness" and "to administer a MoCA and a MMSE in those circumstances when she [the deceased] was acutely ill, just come into hospital, is just inappropriate and, and to say that they're useful tools, I would actually be much stronger in saying that they were misleading tools, that they misled people, and if people now look back on those tools, used in that way as some sort of indicator of a chronic situation for this lady. It's just misleading and incorrect": Tcpt, 24 March 2021, p 161(08-13). 3. Dr Wijeratne responded that the opinion of Associate Professor Rosenfeld was "not necessarily shared by the wider medical community": Tcpt, 24 March 2021, p 161(30-31). Dr Wijeratne also disagreed with Associate Professor Rosenfeld that the MoCA did not account for speech and language problems due to stroke. He noted that the results of a meta-analysis of aphasia in bilingual people concluded that bilingual speakers with post stroke aphasia performed better in their first, than in their second, language, especially if their second language was learned after the age of seven. 4. The deceased was discharged from Westmead Hospital on 4 April 2017 and referred to St Joseph's Hospital for ongoing speech rehabilitation. 5. The medical notes from Dr Chrishanthan included, but were not limited, to: 1. From 5 April 2017 and amended on 7 April 2017 (Ex JB2/50): "Patient is discharged from hospital today Can speak, Mild facial weakness. Quite anxious Medication changes explained to pt" 1. From 6 April 2017 (Ex JB2/50): "quite anxious. Was in hospital for a few weeks. Says she feels quite lost – Supportive counselling… Neurological: Not confused. No headache. No neck stiffness. No hyperacusis. No faints. No weakness. No slurred speech. No incoordination. Orientated. No tremor." 1. From 10 April 2017 (Ex JB2/51): "Alert Walking No confusion… Pt quite anxious of having another stroke. – supporting counselling" 1. From 17 April 2017 (Ex JB2/51): "General: No fevers. Alert quite anxious – Supportive counselling …. Neurological: No headache. No neck stiffness. No faints. No Numbness. No slurred speech. No incoordination. Not confused. No tremor" 1. A joint report of the two experts was filed, pursuant to a direction made by the Court on 31 March 2020. The direction stated: "…4. Directs that the expert witnesses are to confer by telephone, Skype or other videoconferencing facility and endeavour to reach agreement on any matters in issue and to prepare a joint report specifying matters agreed and matters not agreed and the reasons for any disagreement as well as to base any joint report on specified facts or assumptions, such conference to be held without the attendance of the parties or their legal representatives and without the attendance of a facilitator, such conference to take place no later than 30 April 2020." 1. The joint report stated: "Matters agreed between us 1. Lily Savransky, despite her age, was functioning well until experiencing a stroke six weeks before she made her Will of 2017. 2. She developed confusion and aphasia that was severe immediately after the stroke. 3. The assessment of her cognition was limited to two cognitive screening instruments, being the RUDAS and MoCA, which are not per se diagnostic of any disorder. 4. Both of the tests have limitations when administered to a person with aphasia but remain the only objective testing of her cognition after the stroke. 5. She did not have a contemporaneous diagnosis of dementia but suffered cognitive impairment after the stroke. 6. Her GP is likely to have lacked the necessary experience and skills to assess her cognition after the stroke. 7. The assessment of testamentary capacity by her lawyer was significantly limited. 8. Lily Savransky was likely to have been capable of understanding the act of making a Will and its effects. 9. Lily Savransky was capable of understanding the nature and extent of her property relevant to the disposition. Matters not agreed between us 1. The extent to which the RUDAS and MoCA are useful in assessing her cognition after the stroke. Reasons - CW is of the opinion that, in particular, the MoCA administered in her first language is very relevant; TR disagrees as it was administered in the context of aphasic stroke. 2. The extent to which the stroke affected her cognition, in particular her executive function. Reasons - CW is of the opinion that the stroke significantly confounded her executive function; TR disagrees - speech was the more significant impact of the stroke. 3. The extent of residual damage to her speech and cognition at the time the Will was made. Reasons - TR is of the opinion there was significant improvement after the stroke; CW believes believes there was little, if any, change. 4. The extent to which anxiety and depression were significant factors in her decision making. Reasons – TR believes her anxiety was the result of her granddaughter not being in contact and that and psychiatric depression was not present. CW is of the opinion that she experienced a depressive disorder that predated the stroke. 5. She apportioned her estate equally amongst her five beneficiaries in a rational manner. Reasons – TR is of the opinion that as Mrs Savransky had not heard from her granddaughter for several years this would have likely accounted for her reasoning. CW believes that she was no longer able to distinguish adequately between her beneficiaries, whereas her previous Will made her granddaughter the major beneficiary and gave 50% of her estate to one friend if her granddaughter predeceased her. 6. Whether the [sic] she retained testamentary capacity." 1. Dr Wijeratne and Associate Professor Rosenfeld gave evidence, concurrently, on the second day of the hearing. 2. Dr Wijeratne was of the opinion that it was more likely than not that the deceased lacked testamentary capacity when she made the 2017 Will. Dr Wijeratne's report expressed his belief that the deceased suffered at least moderate dementia at the time of the 2017 Will. 3. Dr Wijeratne stated as a result of the deceased's probable dementia, "it is likely that executive dysfunction confounded her ability to give due consideration to the respective strengths of the claims of her potential beneficiaries." 4. It is to be noted that there had been no formal diagnosis of dementia made. In cross-examination Dr Wijeratne, clarified that he was not making a diagnosis of dementia for the deceased but rather "the possibility of mild cognitive impairment": Tcpt, 24 March 2021, p 177(30-4); p 189(16-20). 5. Dr Wijeratne's report listed a number of general warning signs or 'red flags' in the deceased which indicated the need for further assessment outlined by the Law Society: 1. The deceased had difficulty with communication; 2. The deceased was in hospital; and 3. There was a sense that something about the client had changed. 1. He pressed the importance of the speech pathologist's report from 27 April 2017 (one day after the Will was made), which described the deceased as "functional for her needs at home", speaking mainly in Russian, "difficulty reading English on cue cards" and requiring prompting to name items. He did concede in cross-examination that a deficiency in speech does not necessarily mean there is a deficiency in cognition: Tcpt, 24 March 2021, p 187(11-26). 2. In his report dated 8 October 2019, Dr Wijeratne stated: "It is likely that deficits in autobiographical memory and executive function confounded Lily's ability to recall the nature of her relationship with Ivy, and weigh up the relative importance of "blood" relationships against relationships with people who had supported and helped provide care as she aged." 1. Dr Wijeratne also stated that, while the deceased expressed her disappointment with Ivy for not visiting her, she is likely to have lacked the ability to understand the complex reasons for Ivy's failure to contact her. He also suggested that the deceased's appraisal of the Defendants and other beneficiaries would have likely changed after her circumstances became more complex due to the stroke – particularly the need for more care and formal assistance. 2. The Defendants submitted that while there may be a reasonable explanation for the lack of contact between Ivy and the deceased, there is no evidence to suggest that reason was ever communicated to the deceased and, accordingly, there was a "significant distinction and a rational basis for making a different [W]ill in 2017 from that which was made in 2009": Tcpt, 30 March 2021, p 258(13-22). 3. In cross-examination, Dr Wijeratne stated that the change from specific gifts to her beneficiaries in the 2009 Will, to an equal distribution of the estate in the 2017 Will, showed that the deceased "has not been able to make more…subtle distinctions in her beneficiaries, or …what she wished to leave for the beneficiaries" and "suggests she lacked that critical ability to weigh up between the claims of them four": Tcpt, 24 March 2021, p 190(40-48) and Tcpt, 24 March 2021, p 191(01-02). 4. Counsel for the Defendants put to Dr Wijeratne that a collective reading of the medical notes demonstrated a pattern a speech and cognition improving in the deceased over time, to which Dr Wijeratne agreed, but qualified his answer by stating "yes, there, there may well be as - improvements in alertness, concentration but that is - does not in any way tell us or even imply that there is improvement in those more complex higher order cognitions such as executive function—": Tcpt, 24 March 2021, p 187(01-05). 5. Dr Wijeratne conceded that the fact that the deceased managed to decide she wanted to change her Will and execute the guardianship documents, travel to her solicitor's office, and organise for her friends to come to the solicitor's office to sign the documents, later the same day, suggested her executive functioning was operating reasonably well and that there was a "degree of organisation": Tcpt, 24 March 2021, p 188(35-44). 6. He also opined that the deceased suffered from a depressive disorder, which was more likely than not to have occurred prior to the deceased's stroke. He stated that, in his opinion, "[the deceased's] anxiety about suffering another catastrophic medical event is likely to have increased her dependence on her friends". Dr Wijeratne also noted that there was no evidence that Dr Chrishanthan had managed the deceased's anxiety other than by providing "supportive counselling". Nor did he appear to have considered a depressive disorder. 7. While Associate Professor Rosenfeld stated that there was no indication that disorders of the mind played a role in the deceased's decision making, Dr Wijeratne disagreed, stating that her "low mood" and anxiety were far more likely to be secondary to a depressive disorder or cognitive disorder rather than a first time primary anxiety disorder (which is extremely rare to be diagnosed with for the first time in late life). He also stated that the depressive disorder is more likely than not to have occurred prior to the deceased's stroke. 8. Associate Professor Rosenfeld was of the opinion that it was more likely than not that the deceased's medical condition did not affect her capacity when she gave the instructions for and signed the 2017 Will. He stated that there is "no indication therefore from…the history provided that [the deceased] suffered from memory, or behavioural, problems that would have suggested the presence of dementia." His assessment of the deceased's CT scans found no indication of underlying, pre-existing, premorbid brain disease. He considered that there was every likelihood the deceased would have improved function with each passing day after her stroke. (In this regard, all of the witnesses called by the Defendants spoke with the one voice on this topic.) 9. Associate Professor Rosenfeld admitted, in cross-examination, that, at the time of the stroke, there would have been a significant impact to the deceased's executive functioning and cognition but based on his review of the medical notes and medical imaging, that its impact was "to a lesser and lesser extent as time went on": Tcpt, 24 March 2021, p 180(01-30). 10. Associate Professor Rosenfeld explained that, for someone with a speech abnormality, the inability to read cue cards does not necessarily mean there was cognitive impairment, but rather a specific aspect of the person's language which was being tested could still be impaired: Tcpt, 24 March 2021, p 193(34-37). 11. In regards to her knowledge and understanding of the 2017 Will, Associate Professor Rosenfeld stated that most of the speech and language problems the deceased suffered six weeks before making the 2017 Will had significantly resolved to the extent she could communicate and discuss her wishes with her solicitor. He stated that, in his experience, the speech and language problems still present at the time she made the Will, would not have been likely to have extinguished the deceased's ability to consider and understand the legal matters about which she was giving instructions and, enacting, by signing the Will. The decision on capacity and knowledge and approval 1. I have recently set out the principles of law relating to the grant of Probate in Starr v Miller; Starr v Miller [2021] NSWSC 426 at [378] – [485]. It is unnecessary to repeat the principles because of the recency of that decision. 2. I should only refer to a passage in Croft v Sanders [2019] NSWCA 303, at [126], where White JA (with whom Bathurst CJ and Gleeson JA agreed) wrote: "I do not accept the appellants' submission that the primary judge diverted himself from the question of Mr Croft's capacity by finding that the will was rational from Mr Croft's perspective. 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) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17; the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument." 1. ("Inofficiousness" is a term used to describe the degree to which the bequests made in the Will diverge from what, ordinarily, would be expected of the will-maker given her, or his, relationship with the persons who had a call on her, or his, bounty, particularly where a beneficiary who has received an improbable gift was instrumental in the preparation of the will: Bracher v Jones [2020] NSWSC 1024 at [415] (Robb J)). 2. There is no suggestion that anyone other than the deceased was involved in her decision in April 2017, to approach Mr Shahrouk for the purpose of giving instructions for a new Will. Indeed, even after they attended with the deceased upon the solicitor, to sign the acceptance of the appointment as attorneys and enduring guardians, neither of the Defendants knew that she was a beneficiary named in the Will of the deceased that had been made by her on the same day. 3. Having carefully considered the evidence of both of the eminent experts, I prefer the evidence of Associate Professor Rosenfeld. I consider that the evidence, overall, demonstrates that the deceased's language ability had improved by the time she gave instructions for the 2017 Will. In addition, as already stated, the instructions that the deceased gave were relatively simple and straightforward and the explanation that she gave to the solicitor for changing her Will, namely that she was disappointed with Ivy for not remaining in contact, over so many years, whereas the other named beneficiaries had been there to support her for many years, was both rational, and understandable, from the perspective of the deceased. (The facts stated were also proved to be true). 4. I do not accept the conclusion reached by Associate Professor Wijeratne that the deceased did not have the capacity to understand the reasons for the lack of contact. There was no evidence that any reason, in particular that Ivy's father had prohibited her from doing so, was ever communicated to the deceased by Ivy or by anyone else. The deceased herself said that she did not understand the reasons for the lack of contact. In this regard, it is to be remembered that Ivy had attained the age of 18 years, some years prior to the death of the deceased. 5. Furthermore, there was no challenge, at all, to the conduct of the other beneficiaries named in the 2017 Will and the evidence that each had given about the support she had provided to the deceased or the nature of the relationship that each had with the deceased. 6. Nor do I accept the opinion that the anxiety from which the deceased suffered in regard to having another stroke, affected the deceased's capacity. To the contrary, I am of the opinion that the anxiety from which she suffered was likely to have focused her mind on resolving the issue of how her estate should devolve on her death. As stated, she alone had decided to change her Will. 7. I do not see any basis for doubt that the deceased knew that those with claims on her bounty were her only grandchild and the close friends who had provided assistance and support to her for many years and who had treated the deceased as a family member. 8. The deceased was also told that in the 2009 Will she had left her estate, in its entirety, to Ivy. The solicitor made a copy of that Will and went through it with her at the time she first attended his office to provide instructions. There can be no doubt that she was aware of the contents of the 2009 Will. 9. At the time she gave instructions for the 2017 Will, and at the time she executed that Will, even though there may have been some degree of language impairment, I am satisfied that the deceased knew the nature of the act of making a will and its effects; she had a realistic perception of her property (because there was principally the home in which she lived and which would require sale, a matter upon which she gave specific instructions); there was no suggestion of psychopathology affecting her contact with reality; she had an intact intention of how, and to whom, she wished to dispose her assets on her death; and she understood the nature of the changes she was making. Judged at the time, the 2017 Will was not irrational on its face. In this regard, the apparent rationality of the 2017 Will, from the deceased's perspective, is a relevant evidentiary factor, but not the only relevant evidentiary factor, in my assessment of the deceased's capacity. 10. The concept of knowledge and approval is concerned with the contents of the 2017 Will, and whether they expressed the deceased's intentions, and not with the process by which the testamentary intention was formed. In addition, any relevant suspicion must be one that casts doubt on whether the deceased knew and approved the contents of the 2017 Will and must relate to the preparation and execution of that Will. The discussion at the time the deceased made the 2017 Will clearly demonstrates that the deceased knew what she was doing when she executed that Will. I am satisfied that the 2017 Will reflected her testamentary intentions. That she read the Will herself and acknowledged some matters about which she had given specific instructions to the solicitor is also a relevant fact in this aspect of the case. 11. Applying the vigilant and careful scrutiny appropriate, having carefully considered all of the evidence, lay, legal and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, "a grave matter", I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw, or now, s 140(1) of the Evidence Act 1995 (NSW) that the deceased did have testamentary capacity at the time she gave instructions for, and then executed, the 2017 Will. 12. I am also satisfied that she knew and approved its contents and that what was included in the 2017 Will truly reflected her testamentary intentions. 13. The result is that I am satisfied that Ivy's claim to revoke the grant of Probate of the 2017 Will should be dismissed. I shall make an order for the grant of Probate in solemn form of the 2017 Will to the Defendants and make consequential orders remitting the matter to the Senior Deputy Registrar in Probate to take such steps as are required to include a copy of the grant in solemn form in the grant previously issued. The claim for a family provision order 1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application. 2. The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act). There is no age limit prescribed by the Act in the case of a claim by a grandchild. 3. In relation to s 57(1)(e), the test is twofold. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased and the second is being "a grandchild of the deceased". It is only necessary to deal with the first test as there is no issue that Ivy is a grandchild of the deceased. 4. The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support. 5. In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002 (NSW)) at [44]: "In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of 'dependants' does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a 'dependant' is a member of the workers' family who was 'wholly or partly dependent for support upon the worker at the time of his death'. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'" 1. In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough." 1. In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it had been said by Hope AJA: "I would respectfully disagree with the Master in both respects. The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop (dec'd) or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 1. In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J wrote at [42]: "Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance." 1. In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[C]ommon sense requires that certain trivial activities should be disregarded". A similar view was taken by the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 at [13]. 2. In Tobin v Ezekiel (2012) 83 NSWLR 757 at 786; [2012] NSWCA 285 at [109], Meagher JA wrote that dependency "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and at [110], that it "may exist irrespective of whether the dependent person is financially or physically able to support himself or herself". 3. In Bayssari v Bazouni [2014] NSWSC 910 at [53], Ball J put the matter this way: "Dependency seems to me to involve a degree of reliance so that, if the material support giving rise to the dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute." 1. As was repeated in Spata v Tumino (2018) 95 NSWLR 706 at 719-720; [2018] NSWCA 17 at [68]: "It has long been held that the word 'dependent' is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact: Page v Page [2017] NSWCA 141 at [7], per Sackville AJA (with whom Leeming JA agreed on this point). Although Sackville AJA noted that the construction of s 57(1) was not in issue in that case, he cited Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 (per Hope JA with whom Clarke and Sheller JJA agreed) and Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5 at 204 (per Barwick CJ) and 210 (Mason J, Stephen J agreeing), as authority for the proposition. To these cases may be added the decision of Meagher JA (with whom Basten and Campbell JJA agreed) in Tobin v Ezekiel at [109]-[111]…" 1. In Mekhail v Hana; Mekail v Hana [2019] NSWCA 197, at [180], Leeming JA (with whom Basten JA and Emmett AJA agreed) wrote that "dependency is not to be given any restrictive meaning". 2. The question of dependency, whether whole or partial, is a question of fact. 3. The Defendants submitted that regardless of the "elasticity" in the definition of "partly dependent" for eligible persons, infrequent and short stays with the deceased does not make her dependent on her grandmother in the ordinary sense of the word. They also submitted that if the Court finds there was some dependency on the deceased, she was not at the level of "partly dependent", merely minimally dependent, if at all. 4. The indirectness of any assistance provided by the deceased to Ivy, such as is evident here, must be viewed in the context of Ivy having remained in the care of her father, her ordinary primary care-giver, and upon whom, she was dependent for her maintenance and education. Indeed, as Ivy herself stated, she did not want to jeopardize her relationship with her father, by contacting the deceased against his wishes. 5. As a matter of fact, on any version given by her, Ivy cannot be said to have been wholly or partly dependent upon the deceased. Furthermore, that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of Ivy, does not, in itself, make Ivy wholly, or partially, dependent on the deceased. Furthermore, that the deceased went to Brisbane in order to assist Ivy's father whilst he was unwell, it is hardly the case that he abrogated his parental responsibility to the deceased. 6. To qualify a grandchild as a dependant, the gifts or benefits provided by the will-maker, must be of such regularity and significance that one can say that the will-maker had clearly assumed a continuing responsibility for the grandchild's maintenance education, or advancement in life: see Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223. Also see, Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593. 7. On the basis of the evidence, I am not satisfied that Ivy is an eligible person within the meaning of s 57(1)(e) of the Act. In my view, Ivy's needs to be fed, cared for, and accommodated, were all provided byher father, and not by the deceased. 8. In case I am wrong, in the case of an applicant who falls within s 57(1)(d), (e) or (f) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s 59(1)(b)). 9. As stated in Spata v Tumino, by Payne JA, at [72]: "[A] finding of being 'wholly or partly dependent' does not itself give rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step." 1. Sackville AJA, in Spata v Tumino, at [139], also affirmed that: "A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order." 1. In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]: "…Within the first category (s 57(1)(a) – (c)) are persons generally 'regarded as natural objects of testamentary recognition', such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support. Those falling within the second category (s 57(1)(d) – (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are 'potentially appropriate objects of testamentary recognition, depending upon their circumstances'. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question." (Footnotes omitted) 1. The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Dec'd (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. 2. Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, wrote at 13: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances'), 'whether past or present', 'factors... warrant making the application', 'satisfies'. The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act." 1. In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 2. In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]: "In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ('there are factors') is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 1. In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act at [8]: "As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to 'proceed with the determination of the application'. In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in paras (a) and (b)) are 'regarded as natural objects of testamentary recognition', whereas those falling within the second category (identified in paras (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681." 1. In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote at [62] – [64]: "It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. However, the intended result of the wide nature of para (d) of the definition of 'eligible person' and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time." 1. In Lodin v Lodin [2017] NSWCA 327, Sackville AJA (with whom Basten and White JJA agreed), at [126]-[129], set out the following propositions: "…care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting a former spouse of the deceased making an application for family provision from the estate…. …What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward…other cases, such as Dijkhuijs, may involve a considerably more difficult evaluative judgment…. …Another significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant." 1. It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535; Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129. 2. As a beneficiary named in the 2017 Will, I am satisfied that there are factors warranting the making of Ivy's application. 3. Again, in case I am wrong about her eligibility, I turn next to the principles relating to the issue of the provision made for Ivy in the 2017 Will. I have set out the relevant general principles on this aspect most recently in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at 416-456. I do not propose to repeat the principles. However, I shall repeat some principles regarding a claim by a grandchild. 4. My reasons in Bowditch v NSW Trustee & Guardian [2012] NSWSC 275, where I had set out other general principles in relation to a claim by a grandchild attracted the approval of the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [21] (Basten JA); see also at [65]-[67] (Barrett JA). I wrote: "[113] … (a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. (b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. (f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. [114] The authorities that provide the basis for the above summary, in relation to grandchildren, include Tsivinsky v Tsivinsky; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46; Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223. …. [117] I make it clear that I do not intend what I have described as "applicable legal principles" or other "general principles", to be elevated into rules of law or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind." 1. Basten JA, in Chapple v Wilcox, wrote, at [14]: "There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults." 1. In Chapple v Wilcox, the Court confirmed that something more than the existence of normal family relations and affections is required in order to enliven the obligation to make provision for a grandchild. The conferral of particular care and affection by a grandchild and her or his legitimate expectations of inheritance may be relevant to determining whether such an obligation exists: at [65]-[67], [96]-[99] (Barrett JA with Gleeson JA agreeing) and at [17]-[21] (Basten JA, with Gleeson JA agreeing). 2. In Simonetto v Dick [2013] NTSC 77, at [182], Hiley J, took into consideration against the making of a family provision order in favour of adult grandchildren "that the obvious and unfortunate estrangement between [the deceased] and [his wife] and the plaintiffs also negates the existence of a moral duty on the part of [the deceased] to provide for them in his will." This was confirmed in Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4. 3. I have dealt with the fact that the contact between Ivy and the deceased for the last 14 years of the deceased's life was minimal. Whatever its cause, and having concluded that I find Ivy's explanation about the lack of contact, particularly after about 2012, when she was an adult, difficult to accept, there cannot be any doubt that it restrains the amplitude of the provision that ought to have been made for her by the deceased. Additional Principles 1. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at [19] (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J). 2. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 , at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. 3. In Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification." 1. I have discussed the nature of the relationship between Ivy and the deceased earlier in these reasons. 2. Ivy stated that the deceased owed her an obligation because: 1. When they were together the deceased treated Ivy as if she was her daughter; 2. The deceased made Ivy a major beneficiary under her 1999 and 2009 Wills; 3. Ivy is the closest living relative of the deceased and only child of the deceased's only child, who predeceased the deceased; 4. Whilst the deceased and Ivy did not see each other in person they "love(d) each other very much and had a strong common bond with each other". Ivy believed her and the deceased to have a "close and loving relationship with each other up until the time of her death". In oral submissions, counsel for Ivy admits that the deceased was not acting as a "loco parentis" in the typical sense but submitted that to the Plaintiff the love and affection given by the deceased makes her the closest thing to the Plaintiff's mother or a "mother figure": Tcpt, 30 March 2021, p 238(27-38) and p 239(06-07); 5. Under the 1999 and 2009 Wills, Ivy was entitled to receive all of the deceased's personal property, including items owned by Ivy's late mother which remain the "last connection I have to my late mother"; and 6. Between 2000-2003, when Ivy would visit the Lidcombe property the deceased would say words to the effect "one day all of this will be yours. With your mother gone, you are all I have": Affidavit, Ivy Hope Chisak, 21 December 2018 at par 96. 1. These are important matters of which it is clear that the deceased appreciated and seemed to have taken into consideration in making the 2017 Will. 2. I have already noted the size of the deceased's estate, before deductions of any costs, to be $882,752. It is almost $632,013 after costs. It is not a large estate. 3. In an affidavit made on 21 December 2018, Ivy summarised her financial situation. The only assets that she then owned were personal belongings, a second hand laptop computer and a camera. She has never worked and has no superannuation entitlements. In her updating affidavit dated 23 February 2021, she stated she now has $1,500 in savings. 4. Ivy received $40,000 from her grandfather's estate. These funds were held on trust for Ivy and she received payments from time to time. These funds have since been expended in paying for accommodation for Ivy and her father. 5. Ivy is currently a full-time student. As at 23 February 2021, Ivy was receiving Youth Allowance payments of $1,364 per month from Centrelink. She asserted that after 31 March 2021, her youth allowance will be reduced to $1,064 per month, being the amount received before the payments were increased by Covid supplements. 6. Ivy uses her income to contribute to her, and her father's, household expenses and rent. She stated that, without her contribution, she and her father would not be able to afford to live at their current rental address: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 46. 7. Ivy stated that as at 21 December 2018, she has the following monthly expenses (combined with her father's expenditure) (Ex IHC-1/16): Expenses Amounts Rent $1,320 Food $ 800 Bills $ 200 Petrol $ 250 Storage $ 155 Internet Connection Fees $ 75 Telephone $ 10 Total $2,810 1. Ivy attended a total of 11 schools from preschool to the end of year 11. From mid-2007, she began home schooling and completed her education until the end of year 11 through the Brisbane School of Distance Education. She is proposing to study her HSC through TAFE NSW. 2. Ivy is currently enrolled in a Certificate 3 in Travel at TAFE through the online campus. She stated that she is hoping to use this as a stepping stone to complete an architecture, or engineering, degree at university. 3. Ivy has not resided in any stable long-term accommodation during her lifetime. Ivy and her father have lived in a large number of short term housing, including with family members, emergency accommodation and periods of homelessness. 4. At the time of her updating affidavit dated 23 February 2021, Ivy and her father had moved into a granny flat in Pullenvale, Queensland. She stated that this is temporary accommodation. She is hoping to secure more permanent accommodation as a result of additional provision that is made for her by way of an order of the Court. 5. Ivy has had previous negative experiences with neighbours including receiving death threats from neighbours and witnessing a domestic violence incident. In her 21 December 2018 affidavit, she stated that due to these experiences and her agoraphobia, she is seeking to have the Lidcombe property transferred to her to act as a principle form of residence or additional funds from the deceased's estate to purchase a two bedroom property in Jindabyne or some other semi-rural area. (There was no medical evidence to substantiate her claims, except for Exhibit P2 which appear to contain a medical request form and a referral letter for Ivy). 6. Ivy estimated that she will require between $575,000 and $650,000 to purchase a two bedroom house in the Jindabyne area or surrounding localities (Ex IHC-1/17-20). Based on an estimate of receiving interest of 2.5% per annum on funds deposited in a fixed term deposit account, she estimated that she would require a further $275,000 to provide sufficient net income to cover estimated expenses such for stamp duty, bills, council rates and other outgoings in respect of a two bedroom house in the Jindabyne area. In addition she is seeking a lump sum of $75,000 to cover her living expenses whilst she attends university. Of course, the total of these alleged needs exceeds the value of the estate, after the payment of costs. 7. Ivy stated that her father has no savings and currently lives off a disability pension of $2,104 per month (Ex IHC-1/16). His only asset is a 2006 Ford Focus which she estimates to have a value of less than $1500: Affidavit, Ivy Hope Chisak, 23 February 2021 at par 16. (As stated, no evidence was given by her father about this, or any other matter. In any event, the Act does not permit orders to be made to provide for the support of third persons who the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to have made provision for such persons: Re Buckland, Deceased [1966] VR 404 at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams [2004] NSWSC 419 at [86]. 8. Ivy is said to have a number of mental health issues which impact her ability to work and impacted her relationship with the deceased. 9. In oral submissions, counsel for the Plaintiff submitted that this is not a case where Ivy did not want to contact the deceased but felt "psychologically otherwise an inhibition or inability to freely to [sic] be able to contact the grandmother": Tcpt, 30 March 2021, p 251(36-40). 10. In her principal affidavit, Ivy stated she suffered from ongoing mental illnesses since she was 9 years-old. These include depression, chronic anxiety disorder, chronic obsessive compulsive disorder, episodic panic disorder, insomnia and agoraphobia. Ivy has been prescribed anti-depressants which have marginally improved her condition. 11. Counsel for the Plaintiff tendered, on the second day of the hearing, documents containing medical record requests for Ivy as Exhibit P2. 12. As a result of the period of homelessness Ivy and her father experienced, Ivy became sick on numerous occasions and contracted pneumonia. This has caused difficulty sleeping and regular panic attacks (3-4 times a week). 13. Ivy stated that the instability of her living arrangements has caused her to suffer from ongoing stress, anxiety and impacted her mental health. The constant change in living arrangements impacted Ivy's ability to keep in contact with the deceased. She stated she would usually ensure she made contact with the deceased and let her know their new address within a few months of moving. 14. Ivy acts as a support person and carer for her father in an unpaid capacity and a result stated her education has suffered. In her principal affidavit, Ivy noted that in recent years she has observed her father having increasing difficulty particularly with regard to panic attacks and other mental health issues: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 33. 15. Ivy stated that she has always experienced difficulties in making friends and having social contact with other children. Ivy has effectively been living as a recluse since 12 years-old. She currently has no friends and her only social contact is her father, who she assists with care: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 45. 16. Ivy also experienced bullying at several schools. The bullying, in addition to her father's mental health condition, caused deterioration in Ivy's mental health and her studies. 17. Ivy made no contributions, direct or indirect, financial or non-financial, to the estate of the deceased. 18. I have already dealt with the competing claims of the other beneficiaries. 19. Under the deceased's 2017 Will, Ivy is entitled to a 20% share in the deceased's estate. 20. Under the deceased's 2009 Will, subject to specific pecuniary bequests to others totalling $25,000, Ivy is entitled to the residue of the deceased's estate. 21. Ivy was not being maintained by the deceased. 22. As she is an adult, there is no other person liable to support Ivy. 23. The character and conduct of Ivy before and after the death of the deceased has been discussed earlier in these reasons. 24. Having considered all of the matters to which reference has been made, I am of the view that the deceased in the 2017 Will, did make adequate provision for the proper maintenance, education or advancement in life of Ivy. The provision may not have been overly generous, but it was commensurate with what the deceased considered to be referable to her relationship with Ivy and also her relationship with her close friends who she identified as beneficiaries. The deceased gave consideration to the obligations that she had to Ivy. 25. The Act was never intended to enable the freedom of testamentary disposition to be so encroached upon that a will-maker's decisions expressed in her Will should have only a prima facie effect, the real dispositive power being vested in the Court. 26. Furthermore, had the proceedings not been commenced, Ivy's 20 per cent share of the estate would have yielded about $175,000. That is a substantial legacy for a grandchild in the circumstances of this case. A lump sum of that size would have provided her with a reasonable deposit for a home, or a capital sum for the exigencies of life, or perhaps, both. 27. It is clear, on the evidence, that apart from the blood relationship, the totality of Ivy's relationship with the deceased was a substantially, and significantly, less close relationship than the deceased's relationship with any of the other beneficiaries. Their relationship with her was akin to a family relationship, which the deceased herself recognised by giving each an equal share of her estate. (This is not to suggest that the deceased did not love Ivy. That she did was not the subject of dispute). 28. In reaching this conclusion, I have taken into account the alleged animosity between Ivy's father and the deceased. However, as stated, I am of the view that his failure to give evidence allows me to infer that his evidence would not have assisted Ivy. Nevertheless, I have not regarded the lack of contact and who caused, or contributed, to it, as determinative of Ivy's claim. I have simply taken the fact of the lack of contact into account. 29. In my view, Ivy's claim for a family provision order should also be dismissed. 30. It will be necessary to determine costs unless the parties are able to reach agreement. 31. Meantime, the Court: 1. Orders that the amended Statement of Claim, filed by the Plaintiff on 11 December 2019, be dismissed. 2. Orders that probate in solemn form of the Will dated 26 April 2017 be granted to the Defendants. 3. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return that original to the Defendants. 4. Stands over the proceedings to 9:00 a.m. on 10 June 2021 for the determination of costs. ********** 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: 28 May 2021