Supreme Court New South Wales Medium Neutral Citation: Chalik v Chalik [2024] NSWSC 117 Hearing dates: 24, 26, 27 April, 24 May, 6 and 26 July 2023 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Equity Before: Henry J Decision: See at [536] Catchwords: SUCCESSION – Contested probate – validity of will excluding second of two sons – Testamentary capacity – deceased struggled with memory and taking care of herself – whether evidence showed significant cognitive decline in deceased – what weight to give expert report on capacity – what weight to give evidence of solicitor who made will –consideration of statement of reasons – Lack knowledge and approval – brief and simple will – where solicitor and deceased spoke neither English nor deceased's native language when making will – Undue influence – where first son was deceased's live-in carer – dominant and controlling – whether circumstances allowed inference of pressure or coercion – distinction between undue influence in probate and equity SUCCESSION – Probate and administration – extent of estate – whether either son owes debt to deceased's estate – unattested deed of loan between deceased and second son – whether enforceable as contract – whether consideration present – whether loan actually paid – whether intention to create legal relations – limitation period – where first son was deceased's guardian and power of attorney and withdrew funds for his own use – whether funds were loans or improper withdrawals SUCCESSION – Family provision – Claim by adult child in case will found invalid – moderate estate entirely in cash – last valid will divided estate equally between sons – interim provision to first son – where first son deceased's long-term carer – close relationship – poor employment prospects – 60 years old – dominant and controlling during deceased's old age – whether to make order for final provision – whether proceedings commenced within time Legislation Cited: Conveyancing Act 1919 (NSW) s 38 Civil Procedure Act 2005 (NSW) ss 56, 98 Evidence Act 1995 (NSW) s 140 Limitation Act 1969 (NSW) s 14(1)(a) Succession Act 2006 (NSW) ss 58, 59(1)(c), 60(1)(b), 60(2), 61(1) Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2 and 42.20 Cases Cited: Alexakis v Masters (No 2) [2023] NSWSC 509 Antov v Bokan [2018] NSWSC 1474 Ballam v Ferro (No 2) [2022] NSWSC 1358 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Blendell v Blendell [2020] NSWCA 154 Blendell v Byrne [2019] NSWSC 583 Bracher v Jones [2020] NSWSC 1024 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Burns v Burns [2016] WTLR 755; [216] EWCA Civ 37 Chan v Chan [2016] NSWCA 222 Chant v Curcuruto [2021] NSWSC 751 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Chidiac v Maatouk [2010] NSWSC 386 Croft v Sanders [2019] NSWCA 303 Dickman v Holley; Estate of Simpson [2013] NSWSC 18 Estate of Janakievska [2011] NSWSC 1275 Estate of Simpson [2013] NSWSC 18 Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Goldberg v Landerer [2010] NSWSC 1431 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Hall v Hall (1868) LR1P&D 481 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hoff v Atherton [2003] EWCA Civ 1554 Kalaf v Grimanes [2013] WASC 327 Lewis v Condon [2013] NSWCA 204 Lim v Lim [2022] NSWSC 454 Lim v Lim [2023] NSWCA 84 Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685 Megerditchian v Khatchadourian [2020] NSWCA 229 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Meres v Meres [2017] NSWSC 285 Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Quek v Beggs (1990) 5 BPR 11,761 Re Estate Rofe [2021] NSWSC 257 Re the Estate of Hodges Deceased: Shorter v Hodges (1988) 14 NSWLR 698 Romascu v Manolache [2011] NSWSC 1362 Roscorla v Thomas (1842) 114 ER 496 Salvation Army v Becker [2007] NSWCA 136 Schrader v Schrader [2013] All ER (D) 89 (Mar) Schrader v Schrader [2013] All ER (D) 89 (Mar); [2013] EWHC 466 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Squire v Squire [2019] NSWCA 90 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stone v Stone [2019] NSWSC 233 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Underwood v Gaudron [2015] NSWCA 269 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker [1996] NSWSC 188 Watson v Foxman (1995) 49 NSWLR 315 Wingrove v Wingrove (1885) 11 PB 81 Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [1.6] and [2.9] Category: Principal judgment Parties: Proceedings 2021/296823 Gregory Roman Chalik (Plaintiff/Cross-Defendant) Igor Chalik (First Defendant/Cross-Claimant) NSW Trustee & Guardian (Second Defendant/Cross-Defendant) Proceedings 2021/326779 Gregory Roman Chalik (Plaintiff) Igor Chalik (First Defendant) NSW Trustee & Guardian (Second Defendant) Representation: Counsel: Mr N Allan (First Defendant/Cross-Claimant) Solicitors: Chris Adamson, Solicitor (Plaintiff/Cross-Defendant until 19 May 2023) Ziman & Ziman Solicitors (First Defendant/Cross-Claimant) Gregory Roman Chalik, self-represented (from 19 May 2023) File Number(s): 2021/296823 2021/326779 Publication restriction: Nil JUDGMENT 1. These two proceedings concern the estate of the late Margaret Chalik, who died on 20 July 2021, aged 85. 2. Margaret Chalik was survived by her two adult sons, Gregory Roman Chalik and Igor (now known as Isaac) Chalik, the protagonists in these proceedings, her husband Roman Chalik having predeceased her in 1995. 3. Without any disrespect intended, in these reasons, I refer to the parties and other members of the Chalik family by their first names and to Margaret Chalik as the deceased. 4. At the time of her death, the deceased had dementia, was residing in a nursing home and her estate was managed by the NSW Trustee and Guardian (NSW Trustee). The deceased's estate is now valued at $1,652,231.89, consisting entirely of cash. 5. The deceased made a series of wills over her life. The deceased's penultimate will, made on 29 October 1998 (1998 Will), left her estate equally to Gregory and Isaac and appointed the NSW Public Trustee (now known as the NSW Trustee and Guardian) as the executor and trustee of her estate. 6. The deceased's last will, made on 23 April 2013 (2013 Will), leaves everything to Gregory and appoints him as sole executor. It was prepared by Mr Mourice Wermut, a solicitor, who Gregory had arranged for the deceased to meet with. 7. In these proceedings, Isaac challenges the validity of the 2013 Will on various grounds, including lack of testamentary capacity, and Gregory seeks further provision in the event the 2013 Will is held to be invalid. In addition, they each make claims that the other owes money to the deceased's estate. The proceedings 1. Gregory is the plaintiff in both sets of proceedings. He commenced proceedings (2021/296823) (Probate Proceedings) by statement of claim filed on 13 October 2021 seeking probate in solemn form of the 2013 Will and revocation of a caveat lodged by Isaac. 2. Gregory commenced the other proceedings (2021/326779) (Succession Proceedings) by summons filed on 15 November 2021 seeking an order for interim provision pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) and liberty to apply for a final order under that section. 3. Gregory has amended his claims on a number of occasions. 4. The primary relief Gregory seeks in the Probate Proceedings by his third further amended statement of claim filed 27 April 2023 (TFASC) is a declaration that the 2013 Will is the last valid will of the deceased, an order that probate in solemn form of the 2013 Will be granted to him or such as person as the Court appoints, and a declaration and order that Isaac is indebted and should pay to the deceased's estate the sum of $150,000 (plus interest) pursuant to a Deed of Loan entered into between Isaac and the deceased in August 1996 about a loan made in August 1991. 5. In the Succession Proceedings, Gregory was granted the initial relief he sought by way of an interim distribution of $250,000 from the deceased's estate pursuant to orders made by Hallen J on 24 February 2022, the parties having agreed that Gregory would be entitled to at least that sum whichever is the last valid will. 6. The relief Gregory now seeks in the Succession Proceedings is a final order pursuant to s 59 of the Succession Act for further provision from the deceased's estate in the event that the 2013 Will is not found to be the deceased's last valid will. This claim was included in Gregory's amended summons which was filed on 25 November 2022 pursuant to leave granted on 15 November 2022. 7. By his defence and further amended statement of cross-claim in the Probate Proceedings (both filed on 9 November 2022), Isaac challenges the validity of the 2013 Will on the grounds that the deceased lacked testamentary capacity, lack of knowledge and approval and/or undue influence on the part of Gregory. Isaac seeks probate in solemn form of the 1998 Will to be granted to him or such person as the Court appoints. Isaac also denies that the Deed of Loan is enforceable or that he has any liability to the estate in the amount claimed of $150,000. 8. In the Succession Proceedings, Isaac contests Gregory's claim for further provision beyond an equal share of the deceased's estate and says that the interim distribution already made should be deducted from that equal share. Isaac also says that Gregory's application for further provision was made out of time and as such, an extension of time will be required. 9. Both Gregory and Isaac's pleadings included claims that were abandoned or revised prior to and during the course of the hearing. 10. Gregory's pleadings in the Probate Proceedings included another monetary claim that Isaac owed the deceased's estate a further sum of $75,507.22 and an alternative claim for probate in relation to a will made by the deceased in 1997. The further monetary claim was withdrawn in the TFASC (it was deleted). During the course of the hearing, Gregory's solicitor, Mr Adamson, did not press Gregory's alternative claim for probate in relation to the 1997 will (T358.49-50). He also accepted that the 1998 Will was a valid and binding will when it was made but contended it had been revoked by the 2013 Will (T366.46). 11. Isaac's cross-claim sought an order that Gregory provide a full accounting of his dealings with the deceased's funds under a purported power of attorney in Gregory's favour and an alternative claim for further provision under s 59 of the Succession Act. Isaac abandoned his alternative claim for further provision on 15 November 2022 and did not press for the order for full accounting at the hearing. Ultimately, Isaac only pressed for an order to recover on behalf of the deceased's estate the amount of $15,000, which he says was taken by Gregory from his mother's account and has not been repaid (Isaac's Closing Submissions (ICS) at [77] – [79]). 12. The NSW Trustee is the second defendant in both proceedings and has filed submitting appearances. On 15 December 2021, the NSW Trustee renounced any right to probate and to all trusts, powers and authorities expressed under the 1998 Will and the earlier 1997 will which had also appointed the NSW Trustee as executor and trustee. 13. Ms Monika Ross-Maranik, solicitor, is the interim administrator of the deceased's estate, having been appointed to that position on 24 February 2022 by Hallen J. Ms Ross-Maranik's appointment as interim administrator has been extended until further order of the Court. Ms Ross-Maranik has provided written consent to be executor of the deceased's estate on a final basis. The hearing and submissions 1. The two proceedings were heard concurrently with evidence in one proceeding being evidence in the other. 2. The hearing was listed for three days in April 2023 but did not finish within that time. The evidence was completed, a timetable was set for written closing submissions and the hearing was adjourned to 24 May for oral closing submissions. 3. Prior to and during the April hearing, Mr Adamson, solicitor, appeared for Gregory. Mr Allan, instructed by Ziman & Ziman, solicitors, appeared for Isaac. 4. Prior to the resumed hearing on 24 May, Gregory terminated Mr Adamson's retainer and commenced acting for himself. 5. On 19 May, Gregory filed a notice of motion seeking to adjourn and vacate the timetable and hearing for final submissions for at least three months, to strike out the expert report from Dr Jane Lonie (an expert jointly appointed by the parties and whose report was adduced into evidence without objection at the hearing) and other orders in relation to costs and Mr Adamson. 6. At the hearing on 24 May, I dismissed Gregory's notice of motion, with ex tempore reasons given that day. Gregory was directed to file and serve any further written submissions he sought to rely on by 28 June, with the Court noting that it had already received from him partial written submissions on 23 May 2023 and a document at Annexure B to his affidavit dated 10 May 2023 as part of his closing written submissions. 7. On 28 June, the Court received further written submissions and a chronology from Gregory. 8. Gregory's further written submissions attached a document (referred to as the notation by a Commonwealth Bank clerk) that had not been adduced into evidence, to which objection was taken by Isaac. On 6 July 2023, Gregory notified the Court that he withdrew the CBA document from being admitted into evidence and sought to rely on another document, described as a bank clerk's handwritten note about a term deposit held by the Commonwealth bank. On 11 July, the Court made directions for Gregory to file and serve a notice of motion seeking leave to re-open, an affidavit in support and short submissions in relation to the handwritten note and listed the proceedings on 26 July 2023 to determine that application. 9. Gregory did not appear on at the hearing on 26 July, despite dial in details having been provided to him so he could appear by telephone. A notice of motion and other documents had not been filed by Gregory in accordance with the Court's directions and no explanation was provided by him for not appearing on 26 July. Accordingly, the Court proceeded in Gregory's absence, noted that there was nothing before the Court to determine and confirmed that the status of the proceedings was that judgment was reserved. Gregory was informed of the outcome by email sent from my chambers that day. No further application was made by Gregory to re-open. Thus, the Court has not had regard to the handwritten document. 10. The Court received written closing submissions from Isaac on 19 May 2023, that were supplemented by oral submissions on 23 May, and a case note received on 8 June 2023 which had been served in response to an issue raised at the hearing on 23 May. Evidence and witnesses 1. The evidence comprised affidavit and oral evidence from the parties and non-party witnesses and a range of documents produced on subpoena, including medical records and doctors' notes in relation to the deceased's medical condition from 2011 and her bank accounts. 2. Gregory relied on six of his own affidavits and an affidavit from Mr Adamson that attached an English translation (by a translator, Benjamin Perkis) of a typed document written in Russian and dated 17 September 2013 that is signed by the deceased. Gregory says that the document was prepared by the deceased and represents her reasons for excluding Isaac from the 2013 Will. Isaac disputes this. 3. Gregory also relied on two affidavits from Mr Wermut, the first of which was filed pursuant to an order by Hallen J on 24 February 2022 that Mr Wermut serve an affidavit deposing to the circumstances in which the 2013 Will was prepared and executed. 4. Isaac relied on six of his own affidavits and affidavits from each of his sons, Richard and Nathan. He also relied on an affidavit from his solicitor, Mr Derek Ziman, and Mr Achilles Paffas, a solicitor, who did legal work for Isaac in the 1990s and gave evidence that he did not prepare the Deed of Loan. 5. Isaac also read an affidavit of attesting witness in relation to the 1998 Will from Ms Lidia Zin, solicitor, that had been filed by the NSW Trustee in the Probate Proceedings on 27 January 2022, and subpoenaed Ms Zin to give oral evidence. Ms Zin was employed at the NSW Trustee and prepared and witnessed the 1998 Will. 6. As already noted, there was also expert evidence from Dr Jane Lonie, a clinical neuropsychologist, whose report dated 14 March 2023 was tendered (Exhibit A). The parties jointly engaged and instructed Dr Lonie to report on the deceased's testamentary capacity in 2013 and her vulnerability to undue influence. 7. The parties also read two affidavits from Ms Ross-Maranik that set out her estimates of the value of the deceased's estate as at 4 November 2022 and 14 April 2023. 8. Gregory, Mr Wermut, Isaac, Richard, Nathan, Ms Zin and Dr Lonie were cross-examined. Approach and assessment of witnesses 1. I have considered all of the evidence and the facts and arguments contended for in the parties' submissions. 2. However, I should record that aspects of Gregory's written submissions were not easy to follow. They raised matters that had no apparent relevance to the issues in dispute (for example, referring to Aristotle's discussion of "equity", the principles of contempt of court and details of the recent history of income tax in Australia) and made assertions that were not the subject of evidence (for example, that Isaac operated a company and a superannuation fund in the deceased's name, Isaac purchased a two-bedroom unit in North Bondi in September 1991 and the $10,000 term deposit). They also included complaints about the conduct of his solicitor, Mr Adamson, such as that he included matters in Gregory's affidavit against instruction, colluded with Isaac's legal team and filed a chronology that Gregory did not consent to and which contained false and misleading information. It is not, in my view, necessary or appropriate for this Court to consider and deal with those complaints. 3. I am mindful that Gregory was unrepresented when he prepared the submissions. Nevertheless, the Court is not required to undertake an analysis of and deal with every aspect of lengthy submissions that contain unstructured and unsupported assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]. 4. Accordingly, these reasons do not address every matter raised by Gregory's submissions. Rather, they focus on the matters and evidence referred to by both parties at the hearing and in their oral and written submissions which I consider are relevant to the issues and necessary to understand the parties' respective positions and why I have made my factual findings and reached my conclusions on the issues for determination. 5. In assessing the evidence and making my findings, I have had regard to the parties' apparent self-interest and the frailty of human memory and placed more weight on the contemporaneous documents (to the extent they are available), the objective surrounding facts and the inherent probabilities and improbabilities of events: Watson v Foxman (1995) 49 NSWLR 315 at 319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]–[31]. 6. I have also carefully considered the evidence of statements said to have been made by the deceased, particularly where they are disputed, and treated them with caution and where possible, looked for some corroboration: Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14; Chant v Curcuruto [2021] NSWSC 751 (Chant v Curcuruto) at [263]–[264]. 7. As to the witnesses, overall, I formed the impression that Gregory's evidence and submissions were influenced by his own self-interest and the view that Isaac was undeserving of anything as he had been financially successful and taken no steps to look after the deceased. 8. Gregory's evidence about statements made to him by the deceased about wanting to change her will in 2013 and the circumstances in which the statement of reasons document was created was based on his own testimony. I found his evidence about the creation of the statement of reasons document to be inherently unlikely having regard to the objective evidence. 9. There were also inconsistences in Gregory's evidence and he came across as willing to change his evidence to advance his own case; see for example, his evidence about his knowledge of the deceased's prior wills and how the deceased came to make the 2013 Will (at [165]-[169]); his evidence about the deceased's mental and physical state and that of the Bondi Unit when he came back to Sydney in 2011 (at [135]-[136]); his evidence about his knowledge that Mr Wermut spoke Yiddish (at [168]]); and his evidence that he insisted and arranged for the deceased to take her medications (which was inconsistent with the contemporaneous documents at [181]). Gregory's credit was also undermined by the evidence of withdrawals he made from the deceased's bank account at a time when he acknowledged that she had dementia and when the NSW Trustee was the financial manager of her estate. 10. There was another aspect of Gregory's evidence and submissions that I considered to be unsatisfactory, namely his attempt to resile from aspects of his 7 March 2023 affidavit (which he did not consider suited his case) on the basis that part of the affidavit was included by Mr Adamson and had not been approved by Gregory despite him having affirmed the affidavit. 11. On the other hand, and while also likely impacted by self-interest, Isaac's evidence was, in my view, generally more consistent with the objective evidence and his evidence about his ongoing contact with the deceased was corroborated by Richard and Nathan, whose evidence was credible and I generally accept. 12. As to Mr Wermut, I am satisfied that he endeavoured to give evidence honestly and to the best of his recollection of what took place in connection with the making of the 2013 Will and other events. However, the passage of time and the fact that Mr Wermut did not have any file notes of his attendances on the deceased in relation to the making of the 2013 Will when assessing his evidence raised some doubts about the reliability of his evidence. 13. Ms Zin candidly acknowledged that she could not recall the deceased and her evidence about the making of the 1998 Will was based on her standard practice at the time. The 1998 Will reflected the contents of the Will Information Form in evidence and Ms Zin had no personal interest in the proceedings. Other than noting her lack of direct recall, I have no issue with Ms Zin's evidence and generally accept it. 14. Dr Lonie was an impressive witness. She maintained her opinions in cross-examination and clearly articulated her reasons for them. I deal further with Dr Lonie's report later in these reasons. At this stage, I simply note that I have seen no basis for Gregory's submission suggesting that Dr Lonie was asked and agreed to write an unscientific report and her remuneration was based on convincing the Court that the deceased lacked testamentary capacity when the 2013 Will was executed and reject that submission. I have no reason to doubt that Dr Lonie complied with the Expert Witness Code of Conduct in Schedule 7 of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that she had read and agreed to bound by, and that she provided her expert opinion acting as an impartial witness based on her assessment of all of the evidence provided to her. There was also no foundation for Gregory's submission that Dr Lonie's evidence is inadmissible because the notice of the half-paid report fee to Mr Ziman was received 14 days after the hearing and I reject that submission also. 15. The following section sets out a chronological narrative of events drawn from the documentary, affidavit and oral evidence. I then deal with the issues relating to the validity of the 2013 Will. Next, I deal with the money claims made by each of Gregory and Isaac. Lastly, I deal with Gregory's claim for further provision, which is dependent on the outcome of the probate claims. Factual background and summary of evidence 1. Unless otherwise indicated, I am satisfied of the following matters. Early background 1. The deceased was born on 11 January 1936 in Odessa, Ukraine where she married Roman. Gregory and Isaac were born in Odessa on 31 May 1963 and 1 August 1970 respectively. 2. While in Odessa, the deceased worked as a bookkeeper. 3. On 11 January 1978, after spending a short period of time living in a refugee transit facility in Italy, the deceased, Roman, Gregory and Isaac and the deceased's mother, Ethel Leibovich (Ethel), migrated to Australia. The deceased's sister had migrated to Sydney about two years prior. 4. When the family arrived in Australia, none of them could speak, read or write in English, apart from a "smattering" they had learnt from fellow refugees. 5. After arriving in Australia, the Chalik family initially lived in rented accommodation in Bondi. 6. In the 1980s, the deceased completed a TAFE cooking certification and commenced work as a cook at St Vincent's Hospital. Roman worked as a carpenter and as a designer/machinist at a furniture factory. 7. The family spoke Russian at home, although the deceased had sufficient English for everyday communication by the 1980s. There is a dispute on the evidence about whether the deceased also spoke Yiddish. 8. Gregory recalls the deceased speaking Yiddish with her mother, sister, aunt and best friend when they lived in Odessa and also says that Yiddish was a commonly used language in Odessa when they left in 1978. Isaac says he never knew his mother to speak Yiddish, apart from a few well-used exclamatory or expletive words which were not uncommon among Ukrainian Jews. Gregory says that Isaac was never present when their mother spoke in Yiddish and that the family did not speak it at home because his grandfather and father did not speak it. 9. Gregory also gave evidence that while living in the Bondi Unit in 1997 or 1998, the deceased spoke Yiddish with one of their neighbours, Mrs Werthiemer. Mr Ziman, Isaac's solicitor, deposed that a historical electoral roll search of the name "Werthiemer" conducted at the State Library of New South Wales for the period between 1996 and 2008 produced no results for that, or any similar, name in Bondi. 10. On 4 October 1980, the deceased made a will that appears to have been prepared by the Public Trustee. Under the 1980 will, the deceased left her estate to Roman and, if he did not survive her, to Gregory and Isaac and appointed the Public Trustee as executor and trustee. 11. In 1985, the deceased and Roman sold a unit they owned in Waverley (Waverley Unit) and purchased a unit in Wellington Street, Bondi NSW (Bondi Unit). The family and Ethel lived in the Bondi Unit from this time. 12. On 10 July 1995, Roman died following a stroke. The deceased became the sole registered proprietor of the Bondi Unit after Roman's death and remained living there until she moved to a nursing home in October 2019. As described below, Gregory lived with the deceased in the Bondi Unit at various times from 1995. Gregory and Isaac: schooling, work, help to buy units 1. Isaac and Gregory both attended Randwick Boys High School. Isaac had previously attended Bondi Beach Primary School. 2. Gregory left school in 1980 when he was in Year 11. He says that he struggled at school and with fitting into the Australian culture. After Gregory left school, he worked as a storeman in a book warehouse. He gave evidence that from the time he left school until he was 21, he banked all monies earned into his parent's account and the funds were used to repay the mortgages on the Waverley and Bondi Units. Isaac recalls Gregory being asked to contribute towards the cost of groceries for the family once he started working. 3. Isaac left school in 1988, having completed Year 12 in 1988. He subsequently obtained a Bachelor of Economics at Macquarie University in 1993. Whilst studying, Isaac lived at home at the Bondi Unit and worked as a carpark supervisor at Bondi Beach. After he left university, Isaac was employed as an investment portfolio manager for Westpac and later for Chase Bank. 4. The deceased and Roman assisted both Gregory and Isaac financially to purchase properties. 5. Isaac deposes that the deceased and Roman gave him $50,000 in 1993 towards the purchase of an investment unit in Dutruc St, Randwick. Isaac says that the money was a gift for being the first Chalik to graduate university, he borrowed the remainder to cover the purchase and rented out the unit to cover mortgage repayments, which he later sold in 1997. In 1995, Isaac purchased another unit in Frances St, Randwick using the equity from the Dutruc property, which he says he sold in 1999. I refer to these units as the Randwick Units. 6. Gregory says that on 9 January 1994, the deceased and Roman gave him $46,432.71 towards the purchase of a unit to live in Coogee. Gregory says that this sum included about $38,000 of his own share from his parents' bank account and recalled that his parents owed him a further sum of money which was repaid to him, although he could not recall how much. 7. Gregory moved into and lived at the Coogee unit in 1994, at which time he was working as a taxi driver. 8. It appears that Gregory's relationship with the deceased may have been tumultuous at this time, as evidenced by a letter he wrote to the deceased on 27 April 1995, while Roman was hospitalised, in which he referred to himself as, "your loving but unloved son". Isaac gives evidence that prior to Roman's death, Gregory frequently argued with his parents about his lifestyle, particularly his increasing involvement with his orthodox Jewish faith and elaborate tabletop war-gaming. 9. In 1995, following Roman's death, Gregory moved back in with the deceased and lived with her in the Bondi Unit. Gregory says he did so as his mother was deeply depressed following Roman's death. He also says that he was responsible for caring for her and that Isaac did not regularly visit the deceased or participate in her care during this period of time. In 1996, Gregory started studying at the University of Sydney, although he did not complete his degree. 10. Isaac gave evidence that after 1995, he observed regular arguing and bickering between the deceased and Gregory, usually about Gregory's lifestyle, and that although the deceased was grieving the loss of Roman, she was healthy and did not need Gregory's help around the house. 11. Gregory says that although he and his mother had disagreements during this period of time, they largely got on very well. Isaac's first marriage and the Deed of Loan 1. On 1 September 1996, Isaac married his first wife, Marina, and moved out of the Bondi Unit. The wedding was paid for by Marina's family. Isaac says that, at his mother's request, he asked Gregory to be his best man at the wedding. 2. On 31 August 1996, the day before Isaac was due to be married to Marina, he and the deceased signed a document styled "Deed of Loan". 3. The Deed of Loan is a nine-page typed document between Igor Chalik as Borrower and Margaret Chalik as Lender dated in 1996 (the actual date is unclear) for the Principal Sium of $150,000 and is signed by Isaac and the deceased in the execution clauses. There are no other signatures on the Deed of Loan. 4. The Deed of Loan relevantly provides that: 1. the Borrower requests the Lender to advance the Principal Sum on the conditions stated in the Deed: Recital D; 2. in consideration of the Principal Sum "this day paid" by the Lender to the Borrower, the Borrower will repay the Principal Sum on the terms and in the manner set out in the Deed and Schedule: cl 1; 3. the Principal Repayment date is 30 August 2016: Schedule; 4. notwithstanding the date of the Deed, the Principal Sum was advanced by the Lender to the Borrower on 29 August 1991: cl 4; 5. on default of any payment, interest will be payable at 5% per annum: cls 2.1, 3 and Schedule; and 6. the Borrower will provide security for the obligations under the deed by granting a second mortgage on both of Isaac's Randwick Units: cl 5 and Schedule. 1. Gregory's claim that Isaac owes $150,000 to the deceased's estate is based on the Deed of Loan. Further evidence and my findings in relation to the Deed of Loan are set out later in these reasons. At this point, I simply note that Isaac does not deny he signed the document and says that he did not receive a loan from the deceased for $150,000 on 29 August 1995 or at any other time. 2. Following the wedding, Isaac and Marina went on a honeymoon which was paid for by Marina's family. Upon their return, Isaac commenced working for his father-in-law as an investment manager for a medical clinics business. In 1998, Isaac ceased working for his father-in-law and commenced work as a mortgage broker for his own business. 3. By all accounts, Marina and the deceased did not have a close and amicable relationship. However, Isaac gave evidence that the deceased regularly visited him at work if she was doing shopping nearby. Gregory's recollection was that he and the deceased had very limited contact with Isaac after the wedding. 1997 and 1998: new wills 1. On 17 January 1997, Isaac's eldest son, Nathan, was born. 2. On 2 April 1997, the deceased made a new will (1997 Will), which appears to have been prepared by the NSW Trustee. Under the 1997 Will, the deceased made Gregory the sole beneficiary of her estate and appointed the NSW Trustee as executor. 3. Gregory gave evidence that the deceased had told him she intended to exclude Isaac from her will but he was not aware that she had actually done so. His belief was that the deceased went to the NSW Trustee and made the 1997 Will on the basis that Isaac had "abandoned her and would not give access to her grandchildren". 4. Isaac gave evidence that following Nathan's birth, Marina experienced a difficult period of post-natal depression which contributed to her conflict with the deceased, but that the deceased was never barred from their home or from seeing her grandchildren. 5. On 29 October 1998, the deceased went to the NSW Trustee and made the 1998 Will. Under the 1998 Will, the deceased gave all her property after payment of estate liabilities to Gregory and Isaac (cl 1), appointed the NSW Trustee as executor and trustee of the will (cl 3) and cancelled all earlier wills and codicils (cl 4). 6. Gregory and Isaac were not aware that the deceased made the 1998 Will at the time. Isaac believed that it may have reflected some stabilisation of relations with Marina in 1998. Evidence and findings in relation to the 1998 Will 1. Ms Zin's affidavit confirms that the 1998 Will was signed by the deceased in her presence and the presence of the other witness, Tuaine Taoro (a secretary at the NSW Trustee) at the same time and that, at the deceased's request, they attested and subscribed to the 1998 Will in her presence. 2. Ms Zin was cross-examined. Unsurprisingly, given the time that had passed, Ms Zin did not remember the deceased, taking instructions from her or whether anyone accompanied her to the appointment. She gave evidence about the usual practice of NSW Trustee employees at that time, as follows: they would generally see clients on their own unless they became distressed and wanted another person in the appointment; they would ask various questions regarding their name, ID, assets, who they wanted to give their estate to and whether they were excluding anyone from the will; if someone appeared to speak more than one language, they would talk to them in English and if they could respond to questions they would proceed; there were others within the office who could assist if needed; clients could come in and make a will without the need to make an appointment. 3. Ms Zin also gave evidence that: neither she nor the secretary who was also present at the execution of the 1998 Will spoke either Russian or Yiddish; if a translator had been required in relation to the preparation of a will, that would typically have been a matter recorded in a memo attached to the will; she would have read the will out to the deceased in English; if she had had any concerns about the deceased's understanding of the will when she read it out, she would not have proceeded. 4. In evidence is a Will Information Form in relation to the deceased's 1998 Will that has Ms Zin's signature on it. The Will Information Form (Exhibit B) was admitted into evidence over Mr Adamson's objection. (The document was not included in the Court Book but was produced by Ms Zin in response to Isaac's 30 October 2022 subpoena (to which all parties were granted access) and was provided to Mr Adamson in advance of the hearing). 5. The notes on the Will Information Form record that: the deceased was a pensioner; her address was the Bondi Unit; she had two sons, Gregory who lived with her, and Igor who lived in Bronte; she wanted "All to her sons" with "no substitution at this stage"; the public trustee was to be appointed executor and trustee; her husband had died in 1995. On the third page, in the section headed "Family Provision Act", Gregory, who is described as "lives with mother – eldest son", is identified as a possible claimant and under the heading "reason for exclusion" (although Gregory was not "excluded" from the 1998 Will) states: Gregory is very dominant and has been very difficult with t/trix. Does not want her to go on with her life and meet another man for fear of losing out on his mother's estate. T/trix wants Igor to share 1. As already noted, at the hearing Mr Adamson did not challenge the validity of the 1998 Will. I consider that to have been an appropriate concession. I am satisfied and find that the 1998 Will is a valid will, subject to being revoked by the 2013 Will. 2. Based on Ms Zin's evidence, I am satisfied that the 1998 Will was duly executed. The 1998 Will is rational on its face and in the absence of evidence to suggest otherwise, I am satisfied that the deceased had testamentary capacity as the time. I do not consider there to be any grounds for suspicion or doubt as to whether the 1998 Will expressed the mind of the deceased at this time such as to displace the presumption of knowledge and approval on her part. The 1998 Will reflects the contents of the Will Information Form, the deceased was experienced in making wills and the evidence does not suggest that she could not communicate in or understand English at this time. 3. I do not accept Gregory's submission that Ms Zin's testimony was given in breach of UCPR r 14.14 (which requires matters to be specifically pleaded). I also see no basis for his assertion that Isaac accompanied the deceased to the meeting in 1998 and misinformed Ms Zin about Gregory and reject his contention that suggests the Court should not accept Ms Zin's evidence as she seemed to be in her early twenties "at an event that took place 25 years ago and was not under regulatory and ethical constraints of the legal profession". 2001-2001: Gregory moves to the USA and the 2001 "repay" document 1. On 30 March 2000, Isaac's second son, Richard, was born. 2. Gregory gave evidence that there continued to be substantial conflict between the deceased and Isaac because Marina denied the deceased access to Richard and Nathan. Isaac disputes this. 3. In May 2000, Gregory sold the Coogee unit and relocated to the United States to pursue education in relation to his Jewish faith. He gave evidence that he informed the deceased of his plans to relocate overseas in 1998 but that it took some time to organise. 4. Isaac gave evidence that in the period when Gregory was in the US, he was in more frequent contact with the deceased and visited her frequently, who told him that she thought Gregory was wasting his time in the US and the money that she and Roman had given him to purchase a home. 5. Gregory gave evidence was that while he was overseas, he spoke to the deceased over the phone frequently and that she told him that she had not seen or spoken to Isaac in weeks. 6. In 2001, Isaac sold a further investment unit which he had substantially renovated for $610,000. 7. In evidence is a document dated "7.7.01" (2001 Repay Document) which Isaac signed under a statement that he accepts he wrote, which says: I Igor Chalik will repay Margaret Chalik the sum of $130,000 by November 2001 1. On the same document below the statement written by Isaac are a series of handwritten dates, descriptions and amounts listed (partially in Russian). The translation of the document identifies five entries described as "debt" with payments of amounts of $3000, $5000 and $82,[x] [1] 00, the latter with a date of 1/1/2003. 2. The 2001 document was the basis for Gregory's other money claim which alleged Isaac owed the deceased's estate a further sum of $75,507.22. That claim was deleted from the TFASC. I say more about the 2001 document when considering the Deed of Loan. 2002- 2010: Gregory returns to Sydney, moves to Melbourne and returns to live with the deceased 1. On 16 April 2002, Gregory wrote to the deceased from Seattle indicating his intention to return to Australia on the basis of the breakdown of a relationship in the U.S, which stated as follows: It is very hard for me to write you about it, but I feel that two years of my life have been wasted and, of course, about the loss of such an amount of money … On the other hand, I keep believing that I had no other choice, and these years would be wasted in Australia anyway. Furthermore, I recall my life with you, and I want to cry because you would drive me nuts with your rebukes and I would have no life either. 1. In late 2002, Gregory returned to Sydney and lived with the deceased in the Bondi Unit. He soon relocated to Melbourne and was married there in November 2002. Not long afterwards, he separated from his wife. 2. In July of 2003, Gregory returned to Sydney and again lived with the deceased in the Bondi Unit. He says he did so to care for the deceased who had separated from a de facto partner. 3. Isaac disputes this. He says the deceased did not have a de facto partner with whom she cohabited but described her as having become close friends with a man named Volodya, and that she ended her friendship with him on account of his drinking. 4. In May 2003, Isaac separated from Marina and moved to live alone in Bondi Junction. They formally divorced in 2006. Isaac received about $120,000 and a unit in Botany (which he says he had paid for from his savings) and he used the proceeds of the settlement, in addition to bank loans, to fund the purchase of a house in Matraville in 2007. Nathan and Richard continued to live with Marina but stayed with Isaac on the weekends. Isaac and his children had contact with the deceased most weekends. Following his divorce from Marina, Isaac purchased two takeaway food shops in the Sydney CBD with his fiancée, Hanh Dao (Hannah). In 2010, Isaac renovated the Matraville house into a duplex and sold half. He also sold both takeaway shops in 2012. 5. Between 2004 and 2005, Gregory was employed in a call centre administrative role by Isaac's former father-in-law. 6. In 2007, Ethel passed away. 7. In October 2009, Gregory returned to Melbourne. 8. On 14 February 2010, Isaac married Hannah. He did not invite Gregory to the wedding. The deceased was invited but did not attend because, according to Isaac, she told him that Gregory had threatened to renounce her if she did. Gregory denies having made any such threats. 2010: potential sale of Bondi Unit 1. In May 2010, Gregory visited Sydney from Melbourne. Gregory says that the deceased was at that time hoping to sell the Bondi Unit so that she could move to Melbourne to live with him. Gregory gave evidence that upon his return to Sydney, the deceased told him she had entered into a contract to sell the Bondi Unit. He deposed that an accountant, Mr Michael Meyer, recommended that she speak to Mr Wermut (a Yiddish speaking solicitor) and recalled he and his mother attending a meeting with Mr Wermut in relation to the prospective sale and Mr Wermut recommended that the unit not be sold. 2. Gregory says that he engaged Mr Wermut because it was not the right time for the deceased to relocate on account of their lack of funds and he sought Mr Wermut's advice in order to confirm that the contract was not enforceable. 3. Mr Wermut 's recollection is different to Gregory's and I prefer his account. He gave evidence that Gregory (not with the deceased) came to see him with a suggestion of selling the Bondi Unit which his mother owned. Mr Wermut recalls that when he asked Gregory why he wanted to sell, Gregory said, "I want to free up a little bit of money" and told Mr Wermut the rough figure he hoped to realise (a figure Mr Wermut could not remember). Mr Wermut said that he raised the issue of stamp duty and agents' commission, and queried what was going to be achieved if the Unit was sold. That, according to Mr Wermut, was the end of it and the sale did not proceed. 4. Isaac says that by early 2010, he observed that the deceased was experiencing memory issues. He referred to an agreement that she had signed with a real estate agent to sell her unit, her overdue bills and that she was missing arrangements to meet. 5. In relation to the sale of the Bondi Unit, Isaac says that on an occasion when he visited, the deceased told him she had found a piece of paper with her signature on it but did not recall signing it, thought it might have something to do with Gregory's friend and when he told her it was a sales agent agreement to sell the unit, she said that she never wanted to sell it. Isaac says he called the sales agency, told them his mother had memory issues and the agreement was unenforceable and they never heard from the agency again. 6. Isaac also gave evidence that, from around this time, he and Hannah repeatedly invited the deceased to move in with them due to their concern about her ability to live independently. Isaac says the deceased refused on account of Gregory wanting to relocate back to Sydney, at which point he would require accommodation in the Bondi Unit and financial support. 2011: noticeable decline in deceased's health and Gregory moves back to Sydney 1. On 30 August 2011, the deceased was taken to St Vincent's Hospital by paramedics. 2. The St Vincent's hospital admissions form and progress notes from 30 August 2011 record that Isaac was listed as the emergency contact. They record a diagnosis of "confusion" and the presenting problem as "headache/trouble urinating" and also state: Pt confused at time of interview. Cannot remember why she was brought to hospital or how. Very distressing – paranoid re friend + son colluding to harm her/take her home away. They want to kill me.' Denying any symptoms however states she feels awful and is sick. 1. The notes record that the hospital spoke to her son who stated that the deceased went to her GP that day and spoke to another son in Melbourne, who was concerned and then called an ambulance. They also refer to the following: "deteriorating cognition (?dementia) over last 12-18 months", the family was considering placement or home services but the patient was resisting; the deceased was "alert, orientated to place/person/time" but "confused re event of today"; "impression/UTI + ? acute confusion – worsening dementia"; patient "rambling + pacing and wants to talk to son". 2. The notes also state: at 11.30 pm "..refusing Cxr…PVC + treatment…any intervention…her family have done this to her + she wants to give up. Refusing tablets…"; at 2 am, she now remembered her son called an ambulance and "no longer paranoid", "1 son in Sydney married to Vietnamese woman who she does not get on with and other son in Melbourne who she does not see regularly anymore", "able to talk in sentences…alert – surprisingly oriented to time and place…. does display some tangentialism [sic]…often returns to previous topics which she has forgotten – paranoid delusions expressed….not allowing further examination". The notes also include a list of "issues" which include the following: ? Acute deterioration in mental state. Do not have a grasp of baseline", Acute exacerbation of asthma, likely related to viral UTI, long term deterioration in cognition? Dementia, depending on baseline ? this lady is safe to live at home by self; and she will require more rigorous investigation and treatment but not appropriate to escalate at 0300 in the morning. 1. The deceased left the hospital without waiting to be discharged or picked up by Isaac. The hospital completed an "Absconded Patient Report to Police" that records her mental state as "confused". 2. Isaac says he had spoken to the deceased earlier on 30 August and she told him she was short of breath and they made arrangements for to see her general practitioner (GP) at that time, Dr Trosman. Isaac says he was listed as the deceased's emergency contact following an earlier admission to St Vincent's Hospital on 11 May 2011, and that his mother had agreed to wait for him to collect her from the hospital on 31 August 2011 but instead discharged herself and caught the bus home. 3. According to Gregory, he had called the deceased on 30 August, found himself talking to a paramedic who explained that his mother was experiencing abdominal pains and was suspected of having a urinary tract infection and he gave them Isaac's name as an emergency contact on account of him being in Melbourne. He also gave evidence that he spoke with Isaac over the phone on 30 August 2011 to inform him that the deceased had been hospitalised and, at this time, Isaac suggested that the deceased was not taking her medication and should be put into an aged care facility. Gregory refused and committed to returning to Sydney to care for Margaret. Gregory gave evidence that he called the hospital on several occasions prior to the deceased's release and was informed that she was being kept in the hospital due to her persistent coughing and asthma, conditions of which he was not previously aware. Gregory's evidence was that the deceased discharged herself and had waited for Isaac to collect her but he did not arrive so she caught the bus home. 4. On 31 August 2011, Gregory contacted an organisation, JewishCare, and referred the deceased to them. 5. JewishCare's notes from 31 August record that Gregory told them that: the deceased spoke and understood English but preferred to speak in Russian; she lives alone in a unit in Bondi; he used to provide care for her until he moved to Melbourne three years ago; he telephones her every other day; she seemed to cope well at first but he noticed she was missing taking her medications for high blood pressure and asthma; she manages and is independent but noticed out of date food in fridge; she is active and goes out each day; Gregory requested assistance with "socialisation", "monitoring medication compliance and freshness of foodstuffs"; and he would like to be the first point of contact. The notes from 5 September record that the deceased was referred for assessment and intervention and assigned to Ms Assia Zinder. 6. On 8 September 2011, Ms Zinder met with the deceased at the Bondi Unit. JewishCare's notes record that Ms Zinder called Gregory and told him that the deceased had a problem with personal care and looked very untidy; the deceased said she was never hungry but was not able to say what she eats and when; there was smelly rotten food and the benchtops were full of old bags and dirty; the deceased did not know who paid the bills and was aware she did not receive them for months; the deceased did not do regular shopping and was not able to explain what she bought; she avoided direct questions about managing her daily life and there was a feeling she did not know what to answer; the deceased was repetitive and talked about her late husband and mentioned going to Macquarie University many times for an outing; her bedroom and shower looked tidy but it was impossible to get to the other rooms as they were full of dirty clothes and papers; the deceased did not have any medication at all; and the way the deceased presented herself and answered questions raised Ms Zinder's concerns. 7. Isaac says that the deceased attended Macquarie University when he graduated from there in 1994 but he had not taken her back there and was unaware of any reason why she would have gone back. 8. Shortly after 8 September 2011, Gregory returned to Sydney to live with the deceased in the Bondi Unit. He says that his mother had frequently asked him to relocate back to Sydney prior to her hospitalisation in August 2011 due to her loneliness. He says that when he moved back, he did not pay rent or utilities but paid for his own living expenses. 9. Gregory deposed that when he got back he found the deceased in a poor state; her hair was unkempt; her nails needed cutting; her clothes were shabby; her bedclothes needed washing; the unit was dirty and messy and it did not appear that she had had a shower for quite some time. Gregory gave evidence that the deceased was capable of taking care of herself when he returned although she was not capable of taking care of her medical conditions and described her as "reclusive", "obese", "very unhappy" and "eating unhealthy foods". 10. In cross-examination, Gregory's evidence changed somewhat. He resiled from statements made in proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) where he described that when he returned to the unit in 2011 there was a "stench so bad that he had to take action then and there", the fridge was "just a nightmare, literally black" and he had two weeks or three weeks of cleaning. In cross-examination, Gregory gave oral evidence that: the stench had nothing to do with the state of the unit physically or the deceased's personal care but rather, was caused by her phlegmy asthma cough; there was some mouldy food in the fridge but could not recall it as black; the unit was in pretty good condition and the reason why it took two weeks to clean was not because of the unit's general uncleanliness but because of clutter created by items he had left in two of the bedrooms when he was last living in the unit before relocating to Melbourne; the unit could not have been unclean and did not require much maintenance because his mother was barely there. Gregory did not recall making statements in submissions in the NCAT proceedings that her "behaviour in September 2011 was evidence of dementia" and that "In hindsight, Mum had dementia in January 2011, or maybe even January [2010] but was not obvious to me in September 2011" and explained that they were based on later statements made by other doctors about the progressive nature of dementia. 11. Gregory says that, on the day after his arrival, he met with Dr Beresford, who was the deceased's treating doctor at St Vincent's in the carpark in front of St Vincent's Hospital. He recalled that Dr Beresford told him that the deceased required an urgent change in lifestyle to treat her weight, high blood pressure and asthma. I consider it unlikely that discussion took place in the absence of any contemporaneous notes from Dr Beresford to corroborate Gregory's evidence. 12. On 12 September 2011, Gregory spoke with Mr Wermut to arrange for Gregory to be the deceased's power of attorney and guardian. Gregory said that he did so at Dr Beresford's recommendation after their conversation in the St Vincent's Hospital carpark and having spoken to the deceased more than once about getting a power of attorney or guardianship in the context of broader conversations about her medical conditions. He says he did not pressure her to enter into these arrangements. 13. Mr Wermut made a file note of a discussion with Gregory and the deceased on 12 September 2011 which records that Mr Wermut "explained to her [the deceased] what it [the power of attorney] means" and that she also wanted to give Gregory a power of guardianship. Mr Wermut could not recall whether he met with Gregory and the deceased in person that day or spoke over the phone and the file note does not say. 14. Around this time, Gregory attended the Commonwealth Bank with the deceased in order for him to be granted third-party authorisation to conduct banking for the deceased. By letter dated 12 September 2011, the Commonwealth Bank notified Gregory that he was registered for NetBanking. 15. On 16 September 2011, the deceased signed Power of Attorney and Enduring Guardianship documents in favour of Gregory that had been prepared by Mr Wermut. There is no file note of that event but Mr Wermut's evidence was that Gregory and the deceased must have come to his office to sign the documents that day. Mr Wermut gave evidence that he explained the documents to the deceased but did not ask the deceased to explain back to him what a power of attorney does after doing so. He also gave evidence that, to his recollection, nothing had indicated to him that the deceased's capacity was an issue when he met with her and Gregory in September 2011. Mr Wermut says that it was during this meeting that he learnt the deceased spoke Yiddish, although it was unclear from his evidence whether he conducted the September 2011 meeting in that language. 16. Records of the deceased's Commonwealth Bank account (deceased's CBA Account) indicate that on 26 October 2011, a transfer of $250, recorded as a "loan" was made to Gregory's NetBank account. 17. After Gregory arrived in Sydney, he arranged for the deceased to be seen by a new GP, Dr Maria Opacic, rather than Dr Trosman He says that he lost confidence in Dr Trosman as he did not receive a response when he tried to call him in early September. 18. On 26 September 2011, Dr Opacic saw the deceased. Her notes for that day record the following in relation to the deceased: "forgets things in the fridge, forgets taking medications, ? short term memory, asking same questions …". 19. Gregory says that after he moved back to Sydney, he assisted the deceased in taking her medication and altered her diet to facilitate weight loss and rectify a vitamin D deficiency. He says that they agreed on what foods she liked and what he would cook, they went shopping together and they kept kosher when he lived with her. As to the deceased's activities, Gregory gave evidence when the deceased left the unit she spent most of the day at Bondi Junction "eating junk food", sitting on a bench at both a bus stop and at Bondi Junction near the Coles chatting with people or not talking to anybody and watching people, and would return in the afternoons. 20. Gregory gave evidence that he tried to facilitate activities for the deceased as much as possible to prevent her social isolation, included shopping and going to the local club, and that he facilitated her reconnecting with her sister Kalya by telephone after they had been estranged for 20 years. There is no corroborating evidence of this and Isaac disputes it, noting that Kalya did not attend Margaret's funeral. 21. Isaac says that sometime in 2011, he observed that a padlock had been placed on the kitchen door. Gregory's evidence was that he did so a few weeks after his return to the Bondi Unit in 2011 because the deceased would forget to turn the stove off. 22. There was also evidence that the door to the deceased's bedroom has been damaged, including the lock on it. Gregory gave evidence that he raised his voice at the deceased when he discovered she was eating McDonalds because he was "very insistent that she follow Dr Opacic's medical opinion". Gregory recalled two occasions in either 2011 or 2012 when the deceased responded to these arguments by locking herself in her bedroom and she broke the lock such that she could not get out. He says that on the first occasion, he had to "kick" open the door and that he replaced it two or three weeks later, and on the second occasion he did not replace the handle. Gregory denied that he had broken through the deceased's door out of anger or that he applied the lock so she could not get away. 23. In November 2011, there was a conflict between Isaac and Gregory in relation to items stored by Isaac in the garage of the Bondi Unit. A typed letter in both Russian and English signed by the deceased was sent to Isaac in November 2011 requesting the removal of that property. Gregory gave evidence that he had discussed sending this letter with his mother for months and that it was typed in two languages so that she could also read it before it was sent to Isaac. Isaac says he had never known his mother to type letters prior to this time and that the signature on the letter did not look like his mother's. I find it likely that Gregory typed the letter and arranged for the deceased to sign it. 24. On 20 December 2011, bank records indicate that the deceased attended the Bondi Junction Commonwealth Bank branch to request that her statements be sent to the branch to prevent her son opening her mail. On 14 March 2012, the deceased's record of interactions with Commonwealth Bank states: "3rd party authority cancelled". 2012: Gregory becomes deceased's carer, medical issues and visits by Isaac and his sons 1. On or about 16 March 2012, Dr Opacic completed a Centrelink Carer Payment and/or Carer Allowance Medical Report for Gregory to receive a carer allowance for the deceased. That report ticks the box indicating the deceased was "cognitively impaired" and, under the section entitled "Abbreviated Mental Test (AMT), ticks four boxes as correct and three boxes as incorrect (incorrect as being not recognise two people in the room, name the Prime Minister or recall and address minutes later). The report identifies the deceased's disability and health conditions as asthma, hypertension and "poor short term memory" (see AMT) and ticked the box that the conditions started more than 12 weeks ago. 2. Dr Opacic's notes from 2012 record that the deceased was regularly non-compliant with her medications and was advised repeatedly to take them and Dr Opacic told Gregory that he would have to ensure that they were. 3. On 1 May 2012, $10,000 in cash was withdrawn from the deceased's CBA Account. Gregory says that he did not know why the deceased withdrew $10,000 or what she had done with it and said that he had noticed her in possession of large sums of cash previously. There are other transactions on the deceased's CBA Account around this time which were facilitated by Gregory: on 27 June 2012, a transfer of $864 for "Ulpan Tuition fees", which Gregory says was for a course he was taking and that the money was withdrawn with his mother's permission and repaid in instalments over the "next couple of years"; and on 5 July 2012, a transfer of $147.40 was made for "Melbourne kosher", which Gregory gave evidence was done with his mother's permission in order to purchase kosher meat. 4. Gregory gave evidence that following his relocation to Sydney from Melbourne in September 2011, Isaac and his children were largely estranged from the deceased, although he accepted that Isaac visited her usually once a month. 5. Isaac disputes this. He says that during the period when Gregory was living with the deceased from 2011, he visited his mother sometimes weekly and sometimes fortnightly and described picked his mother up on several occasions to take her to a park to spend time together. He says that Gregory made his visits very unpleasant and he believed that Gregory tried to influence the deceased against him and tried to keep Isaac and his boys away from the deceased, which Gregory denies. 6. Richard and Nathan both gave evidence that during this period of time, they spoke Russian with their grandmother and that she knew only limited English. They gave evidence that prior to 2013, they would see their grandmother every fortnight or so on a weekend when they would go with their father to visit her in the Bondi Unit. 7. Isaac gave evidence that sometimes when he collected the deceased to come to his sons' tennis games during this period, she would be unable to recall where they were going once she was in the car. He also recalled that by this time, she did not write birthday cards or remember family occasions. 8. Nathan recalls that in 2012, the deceased seemed mentally unwell and would sit in the living room watching television or in the corner not watching anything. He and Richard both gave evidence that by 2013, the deceased was unable to remember the rules of tennis or checkers, make decisions or remember the answer to questions discussed earlier in the same conversation, like Richard's age or whether he still played the piano. Richard gave evidence that from around 2013, the deceased's conversations became repetitive and she could understand only simple detail. He described how the deceased would drift from one topic of conversation to another. Nathan also described her rapid weight loss and unkempt appearance during this period. 9. Gregory says that in early 2013, and for years afterwards, although the deceased was forgetful and absent minded, this was only in relation to trivial matters and she was able to talk sensibly and without difficulty about matters like her husband, relatives and family history. His evidence was that the deceased's failing memory in relation to games and tennis was likely because of lack of interest or an inability to relate to Richard and Nathan on the basis of their limited contact rather than cognitive impairment. 10. Gregory gave evidence that by 2013, his mother could not cook or shop but that they had conversations together "all the time at home" and that she was able to relay conversations she had with Isaac. 11. By April 2013, the deceased had had some falls. Gregory refers to three falls. The first was in a fast-food restaurant and an ambulance was called. The second was tripping on the street and Gregory caught her. On the third occasion, the deceased tripped on 30 April 2013 and was hospitalised in St Vincent's with two fractures in her arm and then for a week at the War Memorial Hospital. These admissions are described below. 17 – 23 April 2013: preparation and making of 2013 Will 1. On 23 April 2013, the deceased made the 2013 Will, which was prepared by Mr Wermut. The 2013 Will is three pages long (including a back page). Under the 2013 Will, the deceased: 1. revoked all previous wills and testamentary dispositions: cl 1; 2. appointed Gregory as sole executor of her estate and gave him the whole of her estate both real and personal: cl 2; and 3. if Gregory did not survive the deceased for one month, appointed Isaac as sole executor and gave him the whole of her estate: cl 3. 1. Clauses 4, 5 and 6 are boilerplate provisions regarding the powers of the executor. 2. The 2013 Will is witnessed by Mr Wermut and Anette Craig, a secretary. 3. Gregory deposed that, at some point after he moved in with the deceased in 2011, he found two wills, one made in 1996 or 1997 (Gregory gave different years in different affidavits) and one in 1999. It is unclear whether the first of the two wills Gregory says he found was the 1997 Will or a different document. Gregory never produced the 1999 will to the Court. In cross-examination, Gregory was less precise about the years of the two wills, saying they dated to the 1990s, were made with the NSW Public Guardian and were "identical". He gave evidence that both wills he found were missing from the deceased's papers after she went into the nursing home. 4. In his written evidence, Gregory deposed that both of the wills he found named him as the sole beneficiary. In cross-examination, he gave inconsistent evidence, stating that he had not read either will. 5. Gregory deposed that he showed the "last" of the two wills to his mother and they had a conversation to the following effect: Me: Are you happy with the last Will? Mum: No. I want you to have my property. Igor has deserted me and you have taken care of me. Me: Do you want me to arrange for you to make a new will? Mum: Yes. Me: How about Mr Wermut the solicitor who acted for you when you wanted to sell the unit and talked you out of it? Mum: Yes, I liked him as he spoke Yiddish. 1. In cross-examination, Gregory denied knowing that Mr Wermut spoke Yiddish, denied that his mother spoke Yiddish with Mr Wermut when executing the power of attorney and guardianship in 2011, and denied deliberately selecting a Yiddish speaking solicitor for the making of the 2013 Will. 2. Gregory says he rang Mr Wermut to make an appointment for the deceased to make a new will. Gregory says he took the deceased to see Mr Wermut on 23 April 2013, Mr Wermut spoke to him for a couple of minutes before seeing the deceased on her own and at the conclusion of the meeting, Mr Wermut said something like, "she left everything to you again", and that this surprised him. Gregory denied that he suggested to his mother that she should make a new will in his favour alone or exclude Isaac and said it was an impossibility for him to have suggested this to his mother because Jewish law prohibits leaving the entirety of an estate to one child. 3. According to Mr Wermut, he had two meetings with the deceased. The first was on 17 May, when he met with the deceased on her own with Gregory waiting at reception and took instructions from her, and the second on 23 May, when he met with the deceased and Gregory together and the deceased signed the 2013 Will. 4. Mr Wermut did not have his handwritten file notes of these meetings (he closed his practice in June 2019) and his evidence was given based only on his recollection of the events. 5. As to the meeting on 17 April, Mr Wermut deposed that: 1. Gregory was with the deceased in the reception area. Mr Wermut told Gregory that he wished to speak with the deceased alone and, when he said that, he detected "some unease or discomfort" on the part of deceased and that she was "psychologically … quite dependent" on Gregory. Mr Wermut discerned as much from her body language when they were both in the reception area, including her tendency to look to Gregory for reassurance; 2. he met with the deceased alone and conducted the appointment in Yiddish and was satisfied that they were able to understand each other in that language; 3. because of her age and his perception that she was not of "robust health", he spent some time talking about general matters to satisfy himself that she was capable of making a will; 4. he recalled asking if she knew who he was and she said he was a lawyer but when he asked whether she knew why she was there, she could not reply. Mr Wermut says he told her it was to make a will and this "appeared to jog her memory as though she now recalled the purpose of the meeting"; 5. the deceased told him she did not work now, but used to work either preparing or delivering food and said she had enjoyed her work; 6. he did not recall any other details of the conversation but formed the view she could have a sensible and lucid conversation; 7. the deceased gave him instructions that she wanted everything to go to Gregory and when he asked her what would happen if Gregory died, she said that everything should go to her other son, Igor who was also known as Isaac; 8. he said that as the deceased had two sons, she should think about leaving something to both of them and "she immediately and ….very firmly told me that what she wanted was for everything to go to Gregory". Mr Wermut says he felt uncomfortable about this and he said again that she should think about leaving something to Isaac. The deceased again said that everything was to go to Gregory and not to Isaac, stating that Isaac has very little to do with her, that she saw him only rarely and Gregory was the only who was looking after her; and 9. he told the deceased that there was a strong possibility that Isaac would make an application to court after her death for some part of her assets, to which she expressed some surprise and seemed upset since that was not what she wanted. 1. Mr Wermut said that the deceased and Gregory returned to his office on 23 April 2013 to sign the will and the deceased wanted Gregory present for the signing, which he was. Mr Wermut deposes that he summarised the will to the deceased and asked her if she was happy with what he had summarised and she said she was and she then proceeded to sign the will. 2. Mr Wermut deposed that he said to the deceased and Gregory that there was a good chance Isaac would go to court after her death and ask for something from the estate. He said that, although he did not have all the information, he thought there was a good chance this would happen since she was cutting him out altogether. Gregory said that he was confident the court would not give Isaac anything once they heard all the facts and understood the history of the relationship between Isaac and the deceased. Mr Wermut says that he advised the deceased to set out in detail the reasons why she was cutting Isaac out of her will. Gregory replied she was not good at writing things down and her native language was Russian. Mr Wermut then told Gregory that it was fine if the statement as in Russian as it could be translated if needed and if she was not good at writing, she could tell Gregory her reasons and he could write it down for her, but it had to be her statement and signed be her. 3. In cross-examination, Mr Wermut said that he took instructions from the deceased in Yiddish, describing his Yiddish as "rusty but conversant". He said that he and the deceased had a conversation at a basic level of Yiddish and he had no doubt the deceased understood because she was responsive to things he was saying. He said the deceased "didn't have a very agile sort of mind" and that he "got the feeling that she thought more slowly", described her as lucid, intelligible, responsive and very adamant about what she wanted in her will, and said that she cut the conversation off when he raised leaving something to her other son. 4. In cross-examination, Mr Wermut agreed that the deceased not knowing why she was there "raised a flag" in his mind as to her capacity but described what he observed in the deceased as a "fleeting memory loss". He recalled that the deceased did not say anything about the Bondi Unit being a principal asset of her estate (he said he was aware from previous contact with Gregory that she owned the Bondi Unit), anything about her having $65,000 cash in the bank or that she had previously made other wills. Mr Wermut could not say whether the deceased had considered her estate but said that there was no indication of any cognitive impairment which put him on notice that she might not be aware of what she was doing and Mr Wermut agreed that he did not at any point ask the deceased to repeat back her understanding of what the 2013 Will said. 5. As events transpired, there was a document created in Russian (dated 17 September 2013) that Gregory brought to Mr Wermut's office, which Mr Wermut could not understand but he kept with the 2013 Will for safekeeping, which is referred to below. 30 April to July 2013 – deceased's hospital admissions and health assessments 1. On 30 April 2013, following her fall, the deceased was admitted to St Vincent's hospital and discharged later that day. 2. The hospital records of the admission record that: the deceased had a mechanical trip and fall from a gutter and a "recollection of events"; she was unsure if left or right-handed; she became teary and emotional, increasingly agitated, refused plaster initially and X-ray and threatened to discharge. They also record the following: previous medical history of asthma, UTI and deterioration in cognition; deceased was not taking any medications since late 2021 (sic, sc. 2012) and not seeing GP at all (this was incorrect as she had seen Dr Opacic throughout 2011 and 2012); she was unlikely to manage personal care, already unkempt; she claimed to have never fallen before but records showed she had; she said she did all the cooking, housework, shopping and was independent with finances and bills; "Action plan: MMSE = 8/10 but pt increasingly agitated re pain and previous medical notes + decline cognition, poor judgment"; the deceased could not give her date of birth or an address minutes later; cognitive status marked as mildly impaired on an AMTS score of 8; cooperation/insight or judgement is noted as severely impacted; very vague historian and difficult to assess; "son does not help with care (?? She cares of him)"; and long history of refusing services. 3. A CT brain scan was performed at the hospital, which found an "8mm calcified lesion arising from the anterior flax" thought likely to represent a calcified meningioma. 4. On 1 May 2013, Ms Amanda Klahr from the Geriatric Flying Squad conducted a home visit at the Bondi Unit, having been referred by the St Vincent's emergency department. Ms Klahr's Initial Assessment report records that: Son has stopped BP meds and cholesterol as he states BP is always high and that all she needs is diet and exercise not tablets to manage medications… Carer son is on a disability pension Showering/dressing/grooming: Son reports independent with prompting. However, she was unkempt and unwashed. Will not be able to shower now. She was repetitive in particular in regards to her husband and her son … Nutrition: Very poor nutrition. Eats a lot of junk food, Sounds like she wilt eat too much and not know when to stop. Kosher diet. Cognition: She was repetitive in particular to her husband and her son and difficulties of the relationship with her son. Deferred to her son to answer questions for her. Behavioural issues: Paces, moves objects around the apartment, constant need to keep moving General inspection: Patient was unwashed and unkempt, her PJs were filthy and she was not wearing any pants. Grazes on her nose, chin, fingers and the palms of her hands … Fingers swollen with bruising present … Plan: Rehab admissions would be best option but client unsure…. Review of cognition and give dementia diagnosis….Son declined geriatrician review at home feels it is unnecessary. 1. On 2 May 2013, the deceased was admitted to the War Memorial Hospital. The War Memorial Hospital notes of the deceased's admission record the following: unspecified fall, unspecified place of occurrence, other and unspecified symptoms and signs involving cognitive function and awareness, unspecified dementia, disorientation unspecified, anxiety disorder unspecified. 1. The War Memorial Hospital progress notes for 2 May record the issues affecting the deceased's care, which include: 2. Confusion + dementia → needs formal diagnosis …. → MMSE 3. Anxiety → worried someone will break in whilst in hospital → reassurance … 7. Social situation → unsuitable for him … 9. Poor nutrition + junk food++ → dietician (Kosher) 11. Poor self-care 12. Medication non-compliance 1. Hospital progress notes during the deceased's admission record the following: 2 May: "Alert and orientated place person month but not day, time date or year" and confusion and dementia needs formal diagnosis; 3 May: deceased impulsive…alert, pleasant but confused…had cut bandages; 4 May: poor self- care/hygiene and functional decline; cognitive impairment with STM and behaviours; 5 May: deceased contacted son, distressed stating she is forgetting, losing her mind and stated she was in a hotel; 6 May: alert but seems to be more confused, disoriented to place, before diner wanted to go home as nothing to do here; 7 May: informed him (Gregory) that Kosher meal is not being ordered because deceased stated that she liked normal food when she was admitted, deceased was very upset and teary when son left and said she was not Jewish and didn't like Kosher meals but son was pushing her to eat them… "he is giving me many troubles"; Family conference, deficits of care if stayed at home, son wants to be consulted as guardian on all aspects of rehab, says "won't consent" and "? What benefits from rehab", son doesn't trust hospital, explained that dementia chronic and deteriorating and want support; 8 May: clinical psychology request to see patient for cognitive assessment referral withdrawn as patient discharged. 1. On 7 May 2013, the deceased was discharged from the War Memorial Hospital. The discharge summary records that the deceased was discharged into the care of son with a community health referral and also states: cognition: Patient was unable to be assessed prior to discharge for cognitive function, but dementia is a likely diagnosis. Poor short term memory. Likely an overlay of confusion on admsision [sic] with features of disorientation and anxiety. Perseverative/repetitive. .Social issues: Patient lives with her son who is quite particular and directive. Patient was previously thought to be unsafe for home. Obesity: Son wants his mother to eat Kosher, but patient eats non-Kosher food. Also consumes junk food with about 20kg of weight gain. 1. The referral from the social worker at the War Memorial Hospital to the Community Health Service sent on 9 May 2013 (May 2013 Referral) states: Diagnosis/medical history: …. Diagnosis of dementia with behaviours. … Mid LVH Mnagioma [sic]. Asthma,.. UTIs. Poor hygiene. Poor nutrition … anxiety. Mrs Chalik was … unkempt with poor hygiene, confusion, functional decline, poor nutrition. The unit is reportedly in need of de-clutter/cleaning. Son has extreme orthodox belief +++ elder abuse suspected. Cognition: Confusion and deterioration [circled, as is "Y" to dementia diagnosis] Personal risk assessment: Agitation, Anxious, Impulsive, Non-compliant with meds. 1. Gregory gave evidence that at no time during his visits to the see the deceased while in hospital did any staff member express any concerns to him about the deceased having dementia symptoms. In cross-examination, he said that he didn't "know if she wanted [Kosher food] or not but they were serving pork and we don't eat pork" and denied that he controlled what his mother ate. Based on the contemporaneous records outlined above, Gregory's evidence is inherently unlikely, in my view, and I do not accept it. 2. On 21 May 2013, St Vincent's Community Health service conducted an assessment of the deceased at the Bondi Unit. The Initial Assessment Form records the following: Gregory was present; the deceased had 2 sons, Greg the elder son (very supportive) and 2nd son, not involved in her care; on cognition, the deceased scored 7 out of 10 for the AMT test score - the deceased knew her age, year of birth, hour of the day, home address and recognised two people and but initially gave the year as 1912, then 2012 and could not count back from 20 to 1 or recall an address minutes later. 3. On 30 May 2013, notes taken by Ms Tina Higginbotham (physical therapist), who was part of the Community Health Service, record that it was suggested that the deceased see a "geriatrician or neurologist" in relation to her walking but her "son did not seem interested". 17 September 2013: statement of reasons 1. As noted above, there is a document in Russian dated 17 September 2013 which Gregory says sets out the deceased's reasons for making the 2013 Will (which I have earlier referred to as the Sept 2013 Statement). The Sept 2013 Statement is typed, signed by the deceased and as translated from Russian into English, states as follows: My son Greg, or Grisha as he likes to call himself now, keeps insisting that I should write a letter to explain why I left the apartment to him rather than dividing it equally between him and Igor. I was thinking about it for some time because I don't require an explanation. Nonetheless, here it is below if it may help Grisha later. Grisha has been helping me with home loan repayments for the Belgrave Street apartment that helped us to buy this Wellington Street apartment. Igor never helped with home loan repayments. Ever since we bought it, Grisha lived in that apartment most of our lifetime in Australia. He helped to look after the apartment after his father passed away, despite the fact that he lived in his own apartment at the time. Even after living in America and Melbourne, he would always return here. Grisha lives her now and takes care of me and helps me run the apartment in my old age. We hardly ever see Igor or his children and when I see them, they behave toward me as if we are strangers. Now that I am writing this letter, I haven't seen or heard from Igor for more than a month. I don't understand the animosity that Igor has toward Grisha. When Igor comes to visit me, he never enters my apartment, instead, he waits for me to come out to his car. On what ground does he base his claims for any part of this apartment which he has not seen inside for many years? For me, he stopped being a real son a long time ago, and I do not consider his claims to the Will for any part of the apartment to be justified based on his relations toward me. (signature) Margaret Chalik [name was typed in English] 1. Gregory deposed that he was concerned that the deceased should give a statement as to why she was changing her will and told her she had better make one as Isaac would dispute the will. He says that she agreed, saying that she would write it all down but she hated writing and gave up after 15 minutes. He said that she used typewriters in the USSR, he had a computer and he purchased a set of Russian (Cyrillic) letters for his computer keyboard to allow the deceased to type her statement in Russian. He gave evidence that it took her two weeks to type it out and the Russian letters were removed at the end of the process so her name could be typed in English. He says that when she was finished he printed it out, had the deceased sign it and posted it to Mr Wermut to be kept with the 2013 Will. 2. In cross-examination, Gregory explained that sometime after the deceased made the will, he began asking her to "write something down as to her reasons". At first, Gregory said, his mother refused, but he kept asking her for "at least a couple of weeks". His evidence was that the deceased was reluctant to write with a pen, so his "compromise" was for her to type it, using a keyboard with Cyrillic overlay letters. He doubted whether the statement was written on 17 September 2013, saying it took the deceased weeks to type it, and that it was probably October or November by the time she began writing. Gregory admitted that he read the statement at the time it was made but denied making any changes to it. 3. Gregory denied he was in fact the author of the September 2013 Statement. He accepted that on previous occasions he had typed out documents, in Russian, for his mother which she had then signed, but he maintained that his mother had typed the September 2013 Statement herself. 4. Isaac's evidence was that he had never known his mother to type letters and that the signature on the Sept 2013 Statement attached to the 2013 Will is not one that he recognises as his mother's. Late 2013- 2014: Further observations about deceased's mental state and visits with Isaac and his family 1. Gregory gave evidence that in late October 2013, Dr Opacic formally diagnosed the deceased with dementia after administering a Mini-Mental State Examination (MMSE), giving an MMSE score of 22/30. Gregory said the diagnosis and MMSE score were in a report which he could not locate. Dr Opacic's notes do not include an entry for October 2013 (they refer to 26 September 2013 and then 14 April 2014). 2. Gregory says that by later in 2013, he was aware that his mother had dementia and noticed that she had problems with her short term memory but said that she was still able to function independently, her rationality and long term memory was good and he did not observe any serious loss of memory or disorientation as to the date or time, who her family were and where she came from or lived. 3. Isaac gave evidence that, by 2012 and 2013, his mother said very little, mostly in Russian, and only spoke of events long past. He said she no longer remembered family occasions, did not write birthday cards and could not remember the rules for card or board games she used to play. Isaac says that in 2013, Gregory continued to make it difficult for him and his sons to visit the deceased, and that when he would attempt to call his mother to speak with her or to organise weekend visits, Gregory would answer and say words to the effect of "she's sleeping", "she's not available" or "she's eating". He could only recall a few times when he was able to speak to her. 4. Nathan and Richard say that from 2013 onwards (at which point Richard was 13 years old and Nathan was 16 years old), they saw deceased every couple of Saturdays when Isaac would collect her from the Bondi Unit to come and watch their tennis games and they would occasionally also visit a café or spend time at Isaac's home, which was by then in Matraville. They also recalled occasions when Gregory would ring at short notice and say that the deceased would be unable to attend a tennis game. 5. Gregory says that he never prevented Isaac and his sons from seeing the deceased but said that that sometimes they would arrive at the Bondi Unit without notice when she needed rest. The only occasions he could recall cancelling their visits was when the deceased was unwell or had medical appointments. 6. Gregory gave evidence that by 2014, the deceased's health had substantially improved, although he did recall an incident when he caught her eating raw fish out of the fridge. 7. Dr Opacic notes of 22 September 2014 record the following: Gregory came to talk about his mum … Gregory took her money away so she can't buy junk food … Son can't leaving [sic] anything in fridge – eats even if raw … at home completely isolated person, never calls anyone, doesn't want anyone to call her, happy to just watch TV … when out wants to talk to everyone. 1. On 27 October 2014, a Health Assessment of the deceased was undertaken by a practice nurse (Ms Zoe Perkin) and provided to Dr Opacic which records that the deceased's cognitive status was "abnormal", she "appears more confused today, but does not complain of anything" and reports a MMS score of 13/30, stating "Pt is oriented to place but unsure of day, month & year… unable to remember objects or count backwards… unable to repeat a phrase or write a sentence…". 2. By 2014, Gregory had acquired one or more dogs which lived with he and the deceased at the Bondi Unit. According to Gregory, he obtained two dogs in 2013 or 2014 for use in animal therapy as they gave his mother "a great deal of happiness". 3. On 8 December 2014, a neighbour of the deceased wrote to the strata manager to complain as the dog was running loose, referring to the deceased as "the old woman…of unit 8" who was refusing to let the dog into her apartment even though it was her son's dog (referring to Gregory) and stating, "I don't think she's all there she doesn't think the dog belongs to her". 4. Richard and Nathan gave evidence that, after 2014, they saw deceased less frequently, partially as a result of university commitments that Nathan had. Richard and Nathan both gave evidence of occasions, including after they obtained driving licences, when they independently rang Gregory to ask if they could come and visit the deceased and Gregory refused. Nathan recalled that he was told the reason was that the unit was not clean enough. 5. Between 5 and 11 September 2014, Gregory transferred $25,000 from the deceased's CBA account to his NetBank account. The first transaction was marked as "Mums Odessa trip". I discuss these and other withdrawals from the deceased's account below. 2015 – 2016: queries about will and NCAT proceedings 1. On 4 February 2015, Gregory called JewishCare and said he was struggling with the deceased, particularly with showering, and referred to his mother having dementia and caring for her full-time. 2. On 19 May 2015, Isaac emailed Gregory to ask about the existence of any will, power of attorney or guardianship documents. Gregory replied in the following terms: The short answer is that I don't have an enduring guardianship because I need this in Russian for mum to understand and there isn't one so I had to have on [sic] translated, etc. It got bogged down last year and I hadn't had time to attend to it. 1. Later that day, Gregory informed Isaac that a copy of the deceased's will was held by Mr Wermut. 2. In late May or June 2015, Isaac attended Mr Wermut's office with the deceased in order to obtain copies of the relevant documents. Mr Wermut informed Isaac that the deceased had not given instructions to provide him with copies of the documents requested and that Mr Wermut did not give the documents to Isaac. 3. In cross-examination, Mr Wermut gave evidence that Isaac showed up at the office unannounced and was strident about demanding a copy of her will. He said that the deceased was quiet and didn't say anything, and that he told Isaac he could not give him the will without the deceased giving permission, which she did not do when he took her into his office and spoke to her. He also said that Gregory showed up about halfway through the meeting, and it was "pretty obvious from the friction between them" that Gregory did not want Isaac to see the will, which was not a relevant consideration for Mr Wermut. 4. On 25 September 2015, Isaac commenced proceedings in NCAT seeking the appointment of a financial manager and guardian in relation to the deceased (NCAT Proceedings). 5. On 21 December 2015, Dr Opacic completed a Health Professional Report Form for use in the NCAT Proceedings which states that she had been the deceased's GP since 2011, she saw her 2-3 times per year and over the past 3-4 years, the deceased had mild to moderate dementia that was progressing slowly. It records a MMSE of 21/30 and states that the deceased appears to be able to clearly state what she feels about situations and her preferences but her "capacity" to make informed decisions needs assessment by a geriatrician. It also notes that the deceased can speak English and Russian and should be able to contribute at the hearing. 6. On 4 January 2016, Acting Professor Nicholas Brennan wrote a letter to Dr Opacic for the purposes of the NCAT proceedings, which refers to his review of the deceased for dementia, who attended his clinic with Gregory, and which relevantly, states the following: … Although she carries an established diagnosis of dementia, I believe she has not had a formal assessment of this apart from yourself. Mood and Cognition Her son gives a history of long standing dementia with behaviour issues and depression, especially following her husband's death. Dementia has become more advanced over the last four to five years … Her son Gregory has held guardianship since 2011 and Enduring Power of Attorney since 2012. It was around this time that he noticed that she was forgetting to pay bills, forgetting to take her asthma medications, eating very poorly and had cravings for sugar and junk foods … I believe at the time she was found to be deconditioned, was recurrently falling and was not managing her personal care … I believe there were no major problems reported before 2010. When he son moved back in to look after her, he found a refrigerator full of rotting food and the place was in an unkempt condition, Since she had had her medications supervised and her diet regulated, her general health has improved, although she remains fairly unkempt as she is very resistive to personal care and showering. She will only allow showering once a fortnight. Her son is managing all domestic activities of daily living … She still has periods of depression, emotional outbursts, she regularly becomes angry and screams at noisy neighbours. … Examination and Results On examination Mrs Chalik is a rather engaging, amusing, somewhat garrulous older woman who was quite dishevelled and unkempt in her appearance….Cognitive testing certainly confirmed cognitive impairment with evidence of significant disorientation in time and place, inability to recall any of the three words after one minute, inability to name any animals other than a cat and a dog when given the opportunity, although she did write a cogent sentence. She was able to name several simple objects but was unable to put them in to categories and she did demonstrate evidence of intact visuospatial skills. In total, she scored 17/30 in the [MMSE] Please note that this was using her son as an interpreter… Priorities in Management Mrs Chalik has evidence of dementia, I suspect Alzheimer's disease, but she is being well cared for at home by her son …I do not think we need to change the living conditions at the moment…. .. she is certainly against moving to a nursing home and she is very happy having Greg look after her. I cannot see why these arrangements should be altered, but I have not discussed her case with her other son who holds a different opinion about what is best for her…… 1. On 12 January 2016, a Health Assessment of the deceased was undertaken by Dr Opacic's practice nurse, Ms Perkin, and provided to Dr Opacic which records that the deceased was significantly less confused that day and that her MMS of 20/30 was significantly improved from her previous scores. 2. On 18 April 2016, JewishCare notes recorded that the deceased presented "with significant cognitive impairment" that day. 3. On around 28 January 2016, Mr Wermut met with Gregory and gave him advice in relation to the NCAT proceedings. According to Mr Wermut, he gave general advice about trying to preserve and sustain the power of attorney and power of guardianship that his mother had given to him. Gregory described the advice as general advice about the functioning of the tribunal. Mr Wermut issued an invoice to Gregory on 28 January 2016 in relation to the advice for $643.50. It appears that Gregory paid that account using funds from the deceased's CBA Account, which records a transfer to a NetBank account for that amount on 1 March 2016, in relation to "legalconsult 28 Jan". Gregory gave evidence that he must have given the deceased the funds in cash. 4. On 23 February 2016, NCAT made a guardianship order appointing the Public Guardian for 12 months to make decisions for the deceased about her services and access to others but dismissed Isaac's application for financial management orders. Gregory's appeal was successful and on 8 December 2016, the Appeal Panel set aside the guardianship order but not until the application was redetermined. 2017 – 2019: Guardianship and financial management orders, more dogs in unit. Supreme Court proceedings and deceased moves to a nursing home 1. On 9 March 2017, a Health Assessment of the deceased was undertaken by the practice nurse, Ms Perkin, and provided to Dr Opacic which records that the deceased appeared more confused that day and her MMS score was 13/30, significantly less than the previous year's score. 2. In mid-2017, Isaac and Hannah relocated to live in Tacoma on the Central Coast. He says he continued to visit the deceased in Bondi. 3. On 11 November 2017, NCAT reappointed the Public Guardian as the deceased's guardian for 12 months and also made a financial management order committing the management of the deceased's estate to the NSW Trustee (2017 NCAT Orders). 4. The deceased remained living with Gregory in the Bondi Unit notwithstanding the 2017 NCAT Orders. 5. Gregory lodged an appeal from the 2017 NCAT Orders which he withdrew in March 2018. On 16 April 2018, he lodged a summons in the Supreme Court seeking to appeal from the 2017 NCAT Orders, which proceedings were dismissed as an abuse of process in April 2019. 6. On 17 December 2017, Gregory opened a joint bank account with the Credit Union of Australia (Credit Union Account) in his and the deceased's name. This was at a time when the deceased's affairs were being managed by the NSW Trustee. Between 18 and 27 December 2017, Gregory transferred a total of $98,000 from the deceased's CBA Account to the Credit Union Account, with the description given as "contingency funds". Between 3 and 25 February 2018, Gregory made periodic transfers from the Credit Union Account totalling $90,000 (in $5,000 increments). A further $8,000 was debited from Credit Union Account on 1 and 2 April 2019 by Gregory. 7. By December 2017, Gregory had six dogs living with him and his mother at the Bondi Unit. Isaac recalled that there was a strong odour and that the dogs frequently barked. 8. Mr Wermut gave evidence under cross-examination about an incident in 2017 where Gregory sought to obtain a copy of the title deeds to the Bondi Unit. According to Mr Wermut's evidence, which I accept, he was in hospital and he received a call from his secretary who told him that Gregory wanted them. Mr Wermut gave evidence that Gregory had previously instructed him to make an application to replace a lost title deed. When Mr Wermut mentioned this to an NCAT employee, she was concerned that he may want to sell the unit. Mr Wermut told his secretary not to give the deeds to Gregory. However, Mr Wermut said that Gregory took the title deeds out of his secretary's hands and left with them. Mr Wermut wrote to NCAT to inform them of the incident. 9. In cross-examination, Gregory initially denied attending Mr Wermut's office in 2017 to obtain the title deeds. Instead, he said that he went there after receiving a letter informing him Mr Wermut was ceasing practice and asking him to collect his files. Eventually, Gregor accepted that he wanted to obtain a replacement certificate of title, although he said he could not recall discussing the matter with Mr Wermut or his staff. His evidence was that, during the NCAT Proceedings, he could not find copies of the title deeds among his mother's papers and that he therefore "sought a replacement". He denied seeking the title deed to sell or encumber the Bondi Unit and denied "snatch[ing]" it from Mr Wermut's secretary or taking it and running off. 10. In 2018, Dr Opacic's progress notes about the deceased record that: 1. on 18 April 2018, she received a call from the Public Guardian who expressed concern about the deceased's living conditions which were reported to smell of urine and that she was eating apple pie for breakfast; and 2. on 23 April 2018, the Public Guardian said the deceased needed to be reviewed by a geriatrician and that Gregory was not happy to go back to Dr Brennan; and 3. on 6 July 2018, Isaac came to see Dr Opacic to discuss the deceased's care. This was the first time he did so. According to Dr Opacic's notes, Isaac said he thought that the deceased was still seeing Dr Trosman, her old GP. 1. According to Isaac, in June 2018, there was a lighting malfunction in the Bondi Unit which Gregory did not allow to be repaired until September 2020 such that there was no light in any room in the Unit apart from the kitchen and the laundry during that time. 2. On 3 October 2018, the NSW Trustee wrote to the Credit Union of Australia to advise that the Credit Union Account and any other accounts in the deceased's name were subject to management by the NSW Trustee. 3. On 1 November 2018, Fagan J made orders (in the appeal proceedings commenced by Gregory) on the application of the NSW Trustee that Gregory was to pay the sum of $98,000 that had been removed from the deceased's CBA Account (or such balance that remained under his control) into Westpac bank account in the deceased's name (Westpac Account). 4. On 17 December 2018, Community Health Documentation records that Dr Sarah Ong (geriatrician), and several other community health professionals, attended the Bondi Unit following a referral by the police who had conducted a welfare check and raised concerns about the condition of the unit, including the presence of dog faeces on the floor and cracks in the ceiling. The Bondi Unit was described as "malodorous" and "unclean", with the following noted: Gregory is clearly frustrated with what he seems to perceive as external parties ongoing desire to disrupt the routine that has been established and does not feel that his mother is at risk but believes that her condition has improved since he started caring for her … Son and Margaret met Ben [a Public Guardian employee] in park last week as son refused home visit … Son has been obstructive to Margarets other son visiting and to grandchildren, he does not want her to have visitors without him having direct oversight … 1. On 23 November 2018, the deceased signed an "Add, Delete or Change Role on Personal Account" form in relation to the Credit Union Account which removed her from that account. In cross-examination, Gregory accepted that that by this time, his mother had been diagnosed with "known dementia". 2. On 18 December 2018, Dr Ong issued a report to the NSW Trustee recommending the removal of the deceased from the Bondi Unit unless steps were taken to repair the roof and to allow regular carers to help care for her. 3. On 1 April 2019, the NSW Trustee wrote to the Credit Union requesting that all funds in the deceased's Credit Union Account be paid to the trustee. That day $4,000 cash was withdrawn from the Credit Union Account, which according to an email sent on 3 May 2019, was made by "Mr Chalik" (I infer this is Gregory) at the Randwick branch. The following day, $4,000 was transferred from the Credit Union Account to an account with another bank, with a reference: "Mum's money ref safe keeping $4,000". Gregory's evidence was that "whatever the withdrawal was", it was for use by the deceased and he was not attempting to access his mother's funds for personal use in violation of the 2017 NCAT Orders. 4. On 10 May 2019, Gregory sent Dr Opacic the following email: Dear Dr Opacic, I'm very sorry to bother you again, but it seems the letter you provided is not worded as required. It needs to say that Margaret stated she wants to live with Gregory and not anyone else, which was explained to her, and that she appeared to fully understand her statement at the time. Margaret needs to sign the letter in your presence … 1. On 6 June 2019, Gregory sent an email notifying Dr Opacic that he intended to file a complaint against Dr Ong after she diagnosed the deceased with "advanced dementia". 2. In June 2019, JewishCare was granted access to the Bondi Unit to provide hygiene services with Russian staff to the deceased. According to Gregory, the deceased "blankly refused any community health services". Isaac says the services were denied access to the deceased by Gregory. 3. On 12 September 2019, the deceased was hospitalised in the Prince of Wales Hospital after falling at home and had an operation on her hip. It was recommended that the deceased not return to live in the Bondi Unit under Gregory's supervision. Dr Opacic's notes of 8 October 2019 record that she spoke with Professor J Close, Head of the Geriatric Department at the Prince of Wales Hospital, who stated that arrangements were being put in place by the Public Guardian and Isaac to transfer the deceased to a nursing home on the Central Coast and that Professor Close believed the deceased was saying she wants to live with her son, Gregory, only to please him. 4. On 10 October 2019, the deceased moved into William Cape Gardens nursing home near Isaac's home in Tacoma. 5. Isaac gave evidence that he assisted with the deceased's move and that once she was living there, the stress of dealing with Gregory was eliminated and he was able to visit her daily, and sometimes twice daily. Isaac says he made laminated translation cards to assist her understanding many of the common English words used by the nursing staff. 6. Gregory was unable to visit the deceased after April 2020, when her aged care facility made it compulsory for visitors to have a flu vaccination which Gregory had not received. 2020 - 2021: Gregory moves out of Bondi Unit and it is sold 1. After the deceased moved to the nursing home, Gregory remained living in the Bondi Unit with his dogs. In August 2020, NCAT made orders requiring him to vacate. He did so in September 2020 and has since been living in a van with his dogs. 2. In November 2020, the NSW Trustee as financial manager invited Isaac to inspect the Bondi Unit and remove any of Margaret's belongings. Photographs were taken of the Unit around this time and depict the Bondi Unit as extremely cluttered and dirty. 3. On 25 February 2021, Isaac wrote to Gregory and sought his agreement to move the deceased to a nursing home that had Russian speaking staff. By this time, the Public Guardian no longer had the accommodation function for the deceased. Gregory did not agree (or respond) and on 30 March 2021, Isaac lodged an application with NCAT for the accommodation function to be regranted to the Public Guardian so that it could make a relocation decision in relation to deceased if required. On 18 May 2021, NCAT made orders restoring the accommodation function to the Public Guardian. 4. In June 2021, the Bondi Unit sold for $1,620,000.00. According to Isaac, a similar unit located above the deceased's sold for $1,890,000.00 in March 2021 and the damage to the ceiling adversely impacted the Bondi Unit's sale price. 5. On 20 July 2021, the deceased died whilst at the William Cape Gardens nursing home. Her death certificate records the duration of her last illness as Alzheimer's disease for 5 years and 6 months, hypertension for 2 years and asthma. Validity of the 2013 Will 1. The Court must determine whether the 2013 Will is the deceased's last valid will. Broadly, the issues raised are: 1. whether the deceased had testamentary capacity; 2. whether the 2013 Will was made with the deceased's knowledge and approval; and 3. whether the 2013 Will was made by reason of undue influence on the part of Gregory. Legal principles 1. In order for a will to be a valid testamentary instrument, the testator must have had testamentary capacity at the time the will was made and must also have known and approved the contents of the will at that time. 2. The general principles in relation to testamentary capacity and knowledge and approval were summarised by Kirk JA (with whom Bell CJ and Griffiths AJA agreed) in Lim v Lim [2023] NSWCA 84 at [7]-[12], as follows: [7] It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]- [6] per Basten JA): (a) the capacity to understand the nature of the act of making a will and its effects; (b) the capacity to understand the extent of the property the subject of the will; (c) the capacity to comprehend moral claims of potential beneficiaries; and (d) the absence of mental disorders or delusions which affect the testator's "mental faculties [so as] to make them unequal to the task of disposing of [their] property" (to quote Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 571-572 per Isaacs J). [8] Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]- [41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one's property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries. [9] Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA. Knowledge and approval [10] A further, obvious precondition of a valid will is that the testator knew and approved of the contents of the will. In some cases that may also require showing that they appreciated the effect of what they were doing, so that it can be said that the will contains the real intention and reflects the true will of the testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47] per Meagher JA; Lewis v Lewis [2021] NSWCA 168; (2021) 105 NSWLR 487 at [166]-[187] per Leeming JA. Again, the simpler the will the more easily it might be established that a testator knew and approved of its contents. Onus [11] It has long been established that the legal onus of proof with respect to testamentary capacity and knowledge and approval, if those issues are raised on the evidence, is on the party propounding the validity of the will. Talk of shifting burdens and of presumptions has been common in this area of the law. The way in which the question of onus is often dealt with in respect of testamentary capacity was summarised by Meagher JA in Tobin v Ezekiel at [45]: If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 17 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97-98; [1857] EngR 738; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. [12] In respect of knowledge and approval, the language of "suspicious circumstances" has often been used. In Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, for example, Isaacs J explained (at 528): (1) In general, where there appears no circumstance exciting suspicion that the provisions of [a testamentary instrument] may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents: Barry v Butlin 2 Moo PCC at p 484; Fulton v Andrew [1875] UKLawRpHL 3; LR 7 HL 448. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document: Baker v Batt [1838] EngR 643; 2 Moo PCC 317 at 321; Tyrrell v Painton [1893] UKLawRpPro 56; [1894] P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind App 10 at 16. 1. The fact that a person is a substantial beneficiary who wrote and took part in the preparation of the will is a usual and familiar instance of a suspicious circumstance and calls for vigilant and close examination of the evidence as to the testator's understanding and approval of their will: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 (Nock v Austin) at 528, per Isaacs J. Other factors include: the extent of the physical and mental impairment of the testator; whether the executed document constitutes a significant change from prior wills; whether the will generally seems to make testamentary sense; whether the truthfulness of the party seeking to benefit from the will is undermined by findings that they have lied about matters relating to the giving of instructions or execution of the will; whether the circumstances suggest undue influence or fraud such that the influence might have resulted in the testator signing an instrument where its contents were to some extent unknown or where they were mistaken about its contents as they were misled: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47], [51] and [53]; Romascu v Manolache [2011] NSWSC 1362 at [205], per Hallen AsJ. 2. Undue influence in probate has been described as "pressure of whatever character", "coercion", "the exercise of the power to unduly overbear the will of the testator" and conduct that "destroys free agency", such that the will the testator has executed can be said to have not been what they intended or desired by way of disposition: Tobin v Ezekiel at [49], per Meagher JA (with whom Basten and Campbell JJA agreed); Salvation Army v Becker [2007] NSWCA 136 (Salvation Army v Becker) at [63], per Ipp JA (with whom Mason P and McColl JA agreed); Re Estate Rofe [2021] NSWSC 257 (Rofe) at [129]; Hall v Hall (1868) LR1P&D 481 (Hall v Hall)]; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 (Witer v Crichton) at 122 at 121; and Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 at [62], per Gaudron, Gummow and Kirby JJ. 3. Not all influences and persuasions amount to undue influence in probate. Persuasion, influence, moral pressure to favour a person by will or appeals to the affections of ties of kindred or sentiments of gratitude for past services are not invalidating in probate unless such a force overpowers the volition of the testator and results in a will they did not intend to make: Salvation Army v Becker at [63]–[64], citing Hall v Hall at 481; Petrovski v Nasev; Re Estate of Janakievska [2011] NSWSC 1275 (Petrovski v Nasev) at [311], per Hallen AsJ. 4. As stated by Sir JP Wilde in Hall v Hall at 481–2: In a word a testator may be led but not driven and his will must be the off-spring of his own volition and not the record of someone else's. 1. Actual force, violence or threats of violence need not be proven. The circumstances of the individual testator, including their physical and mental strength, will be relevant in assessing whether the testator's judgement has been impaired by undue influence. If someone is weak and feeble, little pressure may be sufficient to bring about the desired result; the mere talking to them and pressing something on them may so fatigue them that they are induced to do anything for quietness' sake. Thus, what may not constitute undue influence in the case of a person with a strong will and ordinary fortitude may constitute undue influence in the case of a more susceptible individual: Wingrove v Wingrove (1885) 11 PB 81 at 82–3; Winter v Crichton at 122; Rofe at [160]; Petrovski v Nasev at [276]. 2. A finding that the execution of a will has been procured by the undue influence of another also does not require a finding of impropriety on the part of the other: Rofe at [163], citing Petrovski v Nasev at [269] and Blendell v Byrne [2019] NSWSC 583 (Blendell v Byrne) at [459], per Hallen J. 3. In Bracher v Jones [2020] NSWSC 1024, a case in which the will of an elderly woman was found to have been procured by undue influence despite the intervention of a solicitor in its preparation, Robb J observed at [475]: … A finding of undue influence for probate purposes may not be available where there is a basis for concluding that the testator has ultimately been persuaded to accept the demands of the particular beneficiary, even though the reasons given in support of the demands are wrong and unsupportable. The question is whether, in reality, the testator has made a "free" decision. However, where no reason can be found in the evidence that can explain the abandonment by a weakened and susceptible testator of the testator's long-term cardinal testamentary intention, in the face of demands that are both incessant and obsessive, a conclusion of practical coercion may be available. 1. As Vickery J said in Nicholson v Knaggs [2009] VSC 64 at [150]: The key concept is that of "influence". The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle. The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event. It may be achieved by the conduct of one person or several, whether acting in concert or quite independently. Further, the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator. Mens rea has no place as an element calling for proof, although more often than not an intention to bring about a desired result which is contrary to the true will of a testator will be present in cases where conduct amounting to undue influence is found. 1. Undue influence may be determined based on circumstantial evidence and the use of inferential reasoning. As Mann J observed in Schrader v Schrader [2013] All ER (D) 89 (Mar); [2013] EWHC 466 at [96]: It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. 1. A circumstantial evidence case turns on the strength of the evidence overall, with the question for the Court usually being whether undue influence is established when all the surrounding circumstances are taken into account and consideration is given to the terms of the will and the manner in which it was actually executed: Blendell v Byrne at [456]. 2. As to the standard of proof, it is on the balance of probabilities, noting that the allegation of undue influence in this case is a serious one as it involves allegations of manipulative conduct to which the Briginshaw v Briginshaw principles and s 140 of the Evidence Act apply: Tobin v Ezekiel at [48]; Blendell v Byrne at [451]. Expert evidence 1. Dr Jane Lonie is a Clinical Neuropsychologist with a PhD in Clinical Neuropsychology. She has over 24 years post-graduate clinical experience in neuropsychological assessment and cognitive evaluation of pre-clinical, early and moderate stage neurodegenerative disorders within both clinical and medico-legal contexts. 2. Dr Lonie was jointly engaged by Gregory and Isaac pursuant to consent orders made on 14 December 2022 and instructed to provide a report and her opinion on the primary issues of: a) whether the deceased had testamentary capacity to make the alleged will dated 24 April 2013; and b) the extent to which the deceased was vulnerable to undue influence upon her to make the 2013 will. 1. In the joint instructions, Dr Lonie was asked to address six specific questions (set out below) and provided with copies of the affidavits and documents consisting, in the main, of the deceased's medical records (which are also included in the Court Book). 2. In her report dated 14 March 2023 (Report), Dr Lonie notes that from September 2011 – October 2019, the medical and hospital notes, together with the lay evidence, document a pattern of progressive decline in the deceased's cognition, mobility, and levels of functional independence that were accompanied by the emergence of a range of psychological and behaviour symptoms of dementia. She notes that the question of dementia was first raised on 30 August 2011 and the undiagnosed status of dementia (presumed to be of an Alzheimer type) was addressed within the hospital notes arising from the deceased's May 2013 admission. 3. In the Report, Dr Lonie provided an opinion in relation to the six questions as follows: 1.Whether the deceased at the time of the 2013 will understood the nature of the act of will-making and its effects 1. There is no reason to believe, Dr Lonie wrote, based upon what is known of the typical course of deterioration in language and semantic memory, that the deceased would not have retained an understanding of the nature and purpose of a will at and around April 2013. This was on the basis that the deceased was noted as having remained capable of engaging in conversation about "general matters" when she gave instructions in relation to the 2013 Will and hospital records that indicate the deceased's language and comprehension abilities were sufficient to allow her to communicate her wishes with medical staff in April and May of 2013. 2. Whether the deceased at the time of the 2013 will understood the extent of the property of which she was disposing; 1. Although the deceased more than likely retained an understanding and knowledge of her primary asset (the Bondi Unit), it appears unlikely that she would have retained knowledge of the approximate value of the Bondi apartment at the time of making the will. Based on the evidence documenting impairment of short-term memory from August 2011 onwards, Dr Lonie considered that the deceased is most unlikely to have had the cognitive ability to remember discussions pertaining to the value of the Unit that may have occurred in 2010. 3. Whether the deceased at the time of the 2013 will was able to comprehend and appreciate the claims to which she ought to have given effect (i.e., natural beneficiaries) 1. The deceased remained capable of identifying her two primary beneficiaries as her sons, Gregory and Isaac. However, she would not have been mentally capable of comprehending and appreciating the relative claims each of her sons held over her estate. Dr Lonie reached this conclusion on the basis of medical evidence indicating that, at the time, the deceased was displaying substantial impairments of memory and other areas of cognitive function, namely, judgment, insight and self-monitoring ability, independent decision-making, memory and appraisal. In Dr Lonie's opinion: 1. the deceased's loss of insight into her own condition and care needs, inability to reliably retain and later bring to mind events and conversations from the recent past years, poor judgement and impulsivity would have left her ill-equipped, cognitively speaking to make sense of and formulate an independent, reality-based and reasoned view around the nature of and basis for the strained relationship that existed between her two sons, and her own existing and past relationships with her two sons; and 2. her testamentary decision making at and around the time of the 2013 Will was likely a product of at the very least incomplete and likely inaccurate recollection of facts together with a lack of understanding and appreciation of the circumstances, both in a medical and family relational sense. 1. Dr Lonie opined that at the time the 2013 Will was executed, the deceased was suffering a disorder of the mind, namely Major Neurocognitive Disorder, which would have resulted in impaired executive and memory function, in particular, an inability to formulate an accurate appraisal of her own limitations and of her relationship with her sons and their respective claims to her estate, which also left her testamentary wishes vulnerable to the significant influence of others. 4. Whether the deceased at the time of the 2013 Will knew and approved of the 2013 Will's contents at the time it was executed, so that it can be said that the testator comprehended the effect of what she was doing 1. While there are hospital notes that suggest the deceased experienced delusions during her May 2013 admissions, there is no indication that any of them bore any relation to the formulation of her testamentary wishes. 5. Whether the deceased at the time of the 2013 Will not only could understand the nature and effect of will making at that time but could weigh the claims of respective actual and potential beneficiaries, such as her two sons; 1. The deceased is likely to have retained the requisite mental capacity to understand the nature and purpose of will-writing and the ability to comprehend the concept of leaving everything to one son. However, it was highly unlikely that she would have retained the mental capabilities required for her to appreciate, from an emotional or financial perspective, the act of leaving her estate in its entirety to one son to the exclusion of the other. 6. Whether the deceased was affected by '8mm calcified lesion arising from the anterior falx though likely to represent a calcified meningioma, found in the course of the CT scan of 30 April 2013. 1. It was difficult, if not impossible, to predict the extent to which the deceased's neuropsychological presentation was associated with the calcified lesion thought to represent a calcified meningioma identified on 30 April 2013. In any event, Dr Lonie considered that it was not necessary to assess the relative contributions of meningioma and neurodegenerative disease to the deceased's cognitive presentation in order to assess her testamentary capacity at the time she executed the 2013 Will. 2. Dr Lonie also gave her opinion on the deceased's susceptibility to undue influence. She listed various risk factors for undue influence by reference to three academic papers. Dr Lonie considered that the deceased fulfilled the majority of the risk factors, namely: advanced age; gender (a woman); vulnerability of the testator caused by cognitive limitations, mental illness or physical impairment; relative isolation of the testator that allows another to control access to information and distort the true state of affairs; the influencer's apparent authority, including their gender (a man); the existence of a confidential relationship with the testator; the individual accused of undue influence played an active role in procuring the will; dependence of the testator on the influencer; and the "equity" of the distribution contemplated by the impugned will . 3. The factors that Dr Lonie considered that the deceased may not have fulfilled were: the provisions of the will are inconsistent with prior or subsequent expressions of the testator's wishes; significant change in will and a subsequent disowning of the will. 4. In the Report, Dr Lonie emphasised that the presence of any significant cognitive impairment which impacts upon a testator's capacity for independent recollection, appraisal, reasoning and decision-making will place the testator at a heightened risk of undue influence. 5. In cross-examination, Dr Lonie: 1. said there was ample evidence within the medical notes to clearly show that the deceased's cognition was impaired to the extent that she was no longer in a position to be able to judge and appraise the actions of a significant other. Dr Lonie said she believed that the deceased's affections were likely to have been poisoned as a result of that cognitive impairment; 2. considered that the bulk of the evidence points to the deceased not being able to weigh-up the relative claims to her estate and also led Dr Lonie to doubt the deceased's understanding of the approximate value of the estate, and that those two aspects of testamentary capacity would have been impaired as a consequence of her neurological illness; 3. opined the deceased was liable to have her mind poisoned because she was no longer, cognitively speaking, in a position to make independent and fully-informed decisions of her own accord; and 4. did not agree that the 17 Sept Statement represented a simple matter that the deceased felt deserted. She explained that the deceased was not capable of retaining information and, as such, it was difficult to envisage the deceased being in a position to make an informed judgment based on recent events, even from two years prior and be able to apprise her sons in that context. Testamentary capacity 1. As the propounder of the 2013 Will, Gregory bears the onus of proving that the deceased had testamentary capacity when she made the 2013 Will. 2. Testamentary capacity is presumed if a will is duly executed and it is rational on its face: Tobin v Ezekiel at [45] per Meagher JA. 3. There is no dispute that the 2013 Will was duly executed and I consider that it is regular and rational on its face, despite the change from the 50/50 split in the 1998 Will and any debate about the appropriateness of the change and how it came about. Thus, there is a presumption that the deceased was mentally competent at the time she signed then 2013 Will. 4. In my view, there is sufficient evidence to cast doubt about the deceased's capacity to displace the presumption in this case. The doubt about the deceased's capacity in April 2013 is raised by Mr Wermut's evidence that the deceased did not know why she was seeing him on 17 April, the evidence of the loss of her memory and her inability to look after herself in terms of personal care and taking medications prior to 2013 (as recorded by Dr Opacic, JewishCare and by Isaac, his sons and Gregory) and the contents of the hospital notes of her admissions in April and May 2013 referring to, amongst other things, her confusion and likely dementia. 5. Accordingly, the question whether the deceased had testamentary capacity in relation to the 2013 Will is to be determined upon a consideration of the whole of the relevant evidence, without resort to presumptions, noting here that there is a question as to whether it is appropriate in cases such as this, where testamentary capacity and undue influence have been raised, to proceed by reference to presumptions and shifting onuses: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 (Mekhail v Hana) at [164]–[173]. 6. In support of his contention that the deceased had testamentary capacity, Gregory relies, in particular, upon his evidence and that of Mr Wermut. Isaac relies on his and his sons' evidence of what they observed about the deceased prior to and in 2013, Dr Lonie's Report and the documentary evidence, particularly the medical records relating to the deceased. 7. Gregory's outline submissions (prepared by Mr Adamson) contended that Mr Wermut was an experienced solicitor who had a good recollection of what was discussed and remained of the opinion that the deceased had testamentary capacity and that Dr Lonie was also of the opinion that the deceased had testamentary capacity. I do not accept that last submission. As outlined above, Dr Lonie's opinion was that the deceased lacked testamentary capacity. 8. Gregory's later submissions also emphasised and relied on Mr Wermut's evidence, which I consider below. 9. Gregory submitted that the test for mental capacity in probate is a legal and not a medical test and that medical evidence may be probative to the issue but is not essential or determinative. He also submitted that a medical test administered by a doctor and an MMSE test score are not decisive, citing Kalaf v Grimanes [2013] WASC 327 at [120] and [121] and Burns v Burns [2016] WTLR 755; [216] EWCA Civ 37. 10. I accept Gregory's submissions about medical evidence. Whether a testator had capacity is question of fact and law to be determined by the trial judge assessing the evidence as a whole, rather than a purely medical question. An MMSE score does not, of itself, enable the Court to make a conclusion about testamentary capacity, although it may be an important fact to be taken into account in the context of the evidence overall. As Meek J observed in Bear v Bear; Jordan v Bear [2022] NSWSC 1687 at [144], an MMSE test is essentially a screening tool for cognitive impairment and provides some basis for assessing memory recall (citations omitted). 11. The opinions of an expert witness, such as Dr Lonie, as to whether a testator was competent or not competent, while not without weight, are also not decisive as to testamentary capacity. It is recognised that evidence given by a testator's treating practitioners may be of more assistance to the Court than that of an expert witness who lacked the opportunity to observe and assess the testator firsthand: Lim v Lim [2022] NSWSC 454 at [217] and the cases there cited. 12. As Hodgson JA said in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [6]: The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation. See also Croft v Sanders [2019] NSWCA 303 at [24], [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing). 1. Gregory made extensive submissions challenging the medical evidence and Dr Lonie's Report. He submitted that his observations, as the deceased's live-in carer, were fuller, more consistent and more reliable than the brief medical assessments the deceased's received over the years. He also submitted that Dr Lonie's report was incompetently produced, contains a number of fatal faults (referring to an alleged failure to: employ and apply the scientific method; correctly identify, include, define relevance, and interpret data; give weight to data, interview parties; apply legal and medical standards of proof) and should not be given greater weight to his own opinion of whether and when his mother developed dementia. 2. I do not accept that submission. In my view, the reliability of Gregory's evidence was adversely impacted by his self-interest and the inconsistencies and implausibility of some of his evidence. Further, his oral evidence and submissions about the deceased's cognitive capabilities were not, in my view, generally supported by the contemporaneous documents, including what they recorded him saying to others at times. 3. For the reasons set out below, I do not consider that Dr Lonie's report contained the fatal faults that Gregory suggested. As an independent expert retained to provide an opinion based on her experience and the documentary evidence (which included the parties' affidavits), it was not necessary for Dr Lonie to interview the parties. Dr Lonie was also asked to provide her opinion for the Court to consider, not to apply a legal standard of proof. Gregory's submissions that referred to a medical standard of determining facts beyond reasonable doubt also seem to me to miss the point that it is for the Court to determine testamentary capacity on the balance of probabilities. 4. As to the matters Gregory raised about Dr Lonie's Report and the medical evidence, he submitted that Dr Lonie fixed on a doctor's note written during the deceased's August 2011 hospital admission as the earliest medical evidence of dementia, which recounted confusion, distress, poor memory and paranoia on the part of the deceased and noted "Deteriorating cognition (?dementia) over last 12-18 months" and "Long term deterioration in cognition? dementia". Gregory argues the observed symptoms may well have been caused by a urinary tract infection (UTI) and queries how the treating doctor could have known the deceased's mental state was "deteriorating", given the doctor had never observed the deceased before. The source for this observation, Gregory suggests, must have been Isaac, who Gregory accuses of trying to have his mother diagnosed with dementia so he could take control of her finances. He also says that confusion is a well-known symptom of a UTI. 5. I am not persuaded by those submissions. Leaving to one side that Gregory's submission about the symptomatic effects of a UTI was unsupported by medical evidence, I have seen nothing to suggest that Isaac was trying to control the deceased's finances in 2011 or later. To the contrary, the evidence indicates that Gregory obtained the deceased's power of attorney in 2010 and was accessing the deceased's bank accounts from that time. 6. I accept that the hospital records indicate that Isaac told hospital staff that the deceased's cognitive function had been deteriorating over the past 12 – 18 months. Nevertheless, in my view, Isaac's comments and the hospital records which refer to the deceased's dementia and cognitive decline are supported by the lay evidence about the deceased during 2010 and 2011 which, overall, satisfies me that the deceased's cognitive capacity was impaired by September 2011. In particular, Isaac's evidence (which I accept) that in 2010 the deceased did not recall signing the agency agreement in relation to the sale of the Bondi Unit and had trouble dealing with her finances; the evidence from Gregory and the notes from JewishCare about the physical and mental state of the deceased and the Bondi Unit in September 2011, which clearly demonstrate that the deceased had lost the capacity to manage day to day activities, such as personal grooming, cleaning, food preparation, paying bills and taking her medications, which must have occurred over a period of time; the August 2011 hospital records that refer to the deceased not knowing why she was there and how she was brought to the hospital, expressing paranoid ideation about her son and a friend wanting to harm and kill her and take her home away (this could be a reference to Isaac and a nursing home or to Gregory and the potential sale of the Bondi Unit), refusing treatment and absconding from the hospital; and Dr Opacic's notes from September 2011, which refer to the deceased forgetting to take medications and forgetting things in the fridge, and repeating questions. 7. Secondly, Gregory submitted that, by reading the August 2011 hospital notes, the deceased's various doctors over the next several years were affected by "professional groupthink", forming an incorrect view the deceased had an "established diagnosis of dementia" (eg Associate Professor Brennan in January 2016). These doctors, Gregory argues, unscientifically seized on dementia as the simplest explanation for the deceased's symptoms, without excluding other hypotheses. 8. I see no proper basis for the submission that the notes and views expressed by the doctors and other health professionals who treated and dealt with the deceased between 2011 and 2016 were not based on their own observations but were adversely impacted by "professional groupthink" and reject it. Noting that Gregory's own evidence accepted that the deceased had dementia by October 2013, in my view, the background facts outlined above, which are based on both lay evidence and medical records, provide a significant body of evidence that supports a diagnosis of progressive dementia. 9. Thirdly, Gregory attacks as unreliable Isaac and his two sons' observations of symptoms consistent with dementia, for example, the deceased's confusion and poor memory in her abortive effort to sell her unit in 2010. He submits that Isaac's failure to mention in evidence various details of the deceased's medical history shows he was inattentive to her health and that his impressions of her cognitive decline should not be accepted. Nor, in Gregory's view, was it a sign of dementia that the deceased struggled to communicate with her two teenage grandchildren, whose interests (especially in sport) she did not share. 10. Isaac and his sons may not have seen the deceased as much as Gregory from 2011 but their observational evidence of a decline in the deceased's cognitive capacity from 2010 onwards was, in my view, entirely consistent with the other evidence, to which reference has been made. Thus, I did not find their evidence, including that of Nathan and Richard, to be unreliable in that respect. While not at all determinative of the question of testamentary capacity, their evidence was probative on the issue as it raised doubts as to the deceased's cognitive capabilities at the relevant time. 11. Fourthly, Gregory takes issue with Dr Lonie's reliance on and what she drew from the records relating to the deceased's 30 April 2013 hospital admission and her subsequent admission to the War Memorial Hospital, including her reference to the diagnosis of "dementia with behaviours" on 9 May 2013. Gregory says that the person who made the diagnosis, a social worker (Ms Carolyn Begg), was associated with a dementia service and not a medical professional and that Ms Begg did not observe the deceased in person but made her diagnosis from hospital records. Further, Gregory asserts that the information in the May 2013 Referral contained information that was false or misleading and she failed to refer to a RUDAS test (another type of memory test) administered during the deceased's War Memorial hospitalisation that was "inconclusive". 12. Dr Lonie's opinions were not based only on the 2013 hospital records but on the totality of the evidence although she observed, correctly in my view, that the medical evidence arising from the 30 April and subsequent admission to the War Memorial Hospital were of particular relevance in view of their proximity to the making of the 2013 Will. 13. I accept that the MMSE of 8/10 on 30 April 2013 and the AMT score of 8/10 recorded on 2 May 2013 are inconclusive on the issue of capacity. However, the notes from the 2013 hospital admissions, together with the details set out in Ms Klahr's assessment report of 1 May 2013 identify a range of matters that, in my view, support Dr Lonie's opinion that the deceased had a Major Neurocognitive Disorder, which would have resulted in impaired executive and memory function as at April 2013. In particular, the hospital notes that refer to cognitive impairment, reduced short-term memory, poor nutrition, her alert but disoriented state as to day, time and date and year, the need for a formal diagnosis of dementia, paranoid delusions of someone breaking into the Bondi Unit and believing she was in hotel, poor self-care, impulsive at times, attempting to cut off her cast and, after taking a shower, stating that she did not have breakfast which she did have about 45 minutes before her shower. In my view, the reference to a dementia diagnosis in the May 2013 Referral completed by Ms Begg was not unwarranted or inconsistent with the contents of the hospital notes (outlined above), the War Memorial hospital discharge summary (which referred to dementia as the likely diagnosis) and the War Memorial Hospital form in relation to the deceased (which recorded an additional diagnosis of "unspecified dementia"). 14. I reject Gregory's submission that the May 2013 Referral form contained false and or misleading information in all the respects he asserts. In my view, the evidence, including the report by JewishCare in 2011, Ms Klahr's notes of 1 May 2013 and Gregory's own evidence about the state of the deceased and the unit when he returned in 2011, supports the statements made in the Referral that: the deceased was unkempt with poor hygiene; and her unit was unclean, she had recurrent falls given she had three falls that led to hospital admissions, two in 2011 and one in 2013, and a diagnosis of dementia with behaviours and confusion was probable. In that regard, I am not persuaded by Gregory's submission that the deceased simply exhibited behaviours of an aged woman who did not want to be in hospital. 15. I accept that the May 2013 Referral's use of the word "extreme" in the statement "son has extreme orthodox beliefs" may be misleading or inaccurate but it was used in the context where Gregory had insisted on Kosher food which the deceased said she did not want and he had stated that he wanted to explain Jewish law during the family conference on 7 May 2013. As to the statement "elder abuse suspected", that was a matter of opinion and made in the context where the records refer to Gregory as "particular and directive" and the notes record the deceased referring to her son as "giving me many troubles". 16. Gregory was also critical of Dr Lonie's approach to the 2013 and 2015 MMSEs. On the first, which he said was administered by Dr Opacic in October 2013, the deceased apparently scored 22/30 (this score Gregory gave from memory, since he could not locate the original report). The second, administered in December 2015, gave a score of 21/30. Both of these scores, Gregory said, were consistent with mild or early dementia. Gregory submits that Dr Lonie failed to analyse whether this degree of impairment was of a "sufficient magnitude" to impair her testamentary capacity. He also takes issue with the MMSE scores recorded in the Health Assessments provided to Dr Opacic as they were done by a nurse and by Dr Brennan. 17. As I have said, other than Gregory's own testimony, there is no evidence that Dr Opacic did an MMSE test in late October 2013. In the absence of any corroborating evidence, I do not accept Gregory's evidence that he remembers an original MMSE test score done by Dr Opacic in late October 2013 as 22/30. 18. Gregory's references to the MMSE scores in 2013 and 2015 is also selective, noting there is also evidence of MMSE tests undertaken and scores of: 13/30 on 27 October 2014; 17/30 on 4 January 2016; 20/30 on 12 January 2016 and 13/30 on 9 March 2017. The fact that these MMSE tests were administered by a nurse and Dr Brennan does not, in my view, make them unreliable. 19. In any event, the outcome of an MMSE test does not establish (or disprove) testamentary capacity. And rather than focusing on such tests, Dr Lonie's Report considers a range of medical and lay evidence which, in her opinion, pertains to the deceased's neuropsychological function, a more appropriate approach than focusing on later MMSE scores in my view. 20. As Dr Lonie was an independent expert jointly retained by both parties, I have borne in mind the comments referred to above about the probative value of non-treating medical expert opinions in probate cases. However, neither party adduced evidence from the deceased's treating medical practitioners at the time (such as Dr Opacic or Dr Trosman) and there was little in the way of non-party evidence to consider, other than Mr Wermut's evidence and the medical records about the deceased's cognitive state. Dr Lonie's opinions were clearly and cogently explained by reference to the documents in evidence and her experience. Considered in that context and in light of the parties' self-interest, the opinions expressed by Dr Lonie in her Report and in cross-examination, while not determinative, are of some probative value in this case, noting that it is ultimately for the Court to determine whether the deceased had testamentary capacity at the time she made the 2013 Will and not Dr Lonie. 21. Having considered the totality of the evidence and the parties' submissions, for the following reasons, I am not satisfied, on the balance of probabilities, that the deceased had testamentary capacity to make the 2013 Will in April 2013. 22. Based on the evidence referred to at [295], I am satisfied that the deceased was suffering from some form of cognitive impairment by September 2011. 23. The evidence also satisfies me that the deceased's cognitive capacity progressively declined, such that the extent of her impairment was more significant in April 2013. I consider it likely that had a doctor been asked to give a formal diagnosis of the deceased at that time, she would have been diagnosed with progressive dementia or Alzheimer's disease, albeit in the early stages. This is based on the following evidence in particular: Dr Opacic's 16 March 2012 report that identified the deceased as cognitively impaired and ticked three of seven boxes in relation to the AMT; the lay observations of Isaac, his sons and Gregory during the period 2010 to 2013 and Ms Klahr's notes of her assessment on 1 May 2013 which indicate, in my view, a continual decline from late 2011 in the deceased's cognitive capability to make informed decisions for herself; the contents of the hospital notes from April and May 2013 and Dr Brennan's report 2016 which, while although some years later, refers to a formal dementia diagnosis by Dr Opacic (which Gregory said occurred in October 2013), the deceased's dementia becoming "more advanced over the last four to five years" and the MMSE score of 17/30. 24. The testimony of Isaac, his sons and Gregory, Dr Opacic's notes and the notes from the April and May 2013 hospital admissions, as well as Mr Wermut's evidence demonstrates that the deceased was capable of carrying on a conversation and could express her wishes. The evidence also indicates that the deceased had some bad days where she was very confused and did not know where she was and, in general, had short term memory loss. That said, as the principles set out above make clear, it is necessary to consider testamentary capacity having regard to the particular will in question. The deceased had made wills in the past so the concept of a will was not unknown to her and objectively, whether viewed by itself or by reference to the change from the 1998 Will, the 2013 Will was a simple one. Considered in that context, I find it likely that the deceased had the capacity to understand the nature of the act of making a will in April 2013 and the effect of the will she made. 25. Mr Wermut's evidence, as the recollections of the solicitor who prepared the 2013 Will and met with the deceased is material to determining the question of testamentary capacity. 26. The issue I have in this case is that Mr Wermut had no file notes of his attendances with the deceased and his evidence about what happened was based soley on his recall of events nine or ten years prior. Further, the evidence he gave raises doubts, to my mind, as to whether the deceased did, in fact, have the capacity to recall, reflect and reason, in the sense that she had the cognitive capability to understand the extent of the property the subject of the 2013 Will and to comprehend and weigh up the moral claims of her potential beneficiaries. 27. Mr Wermut said he had a conversation with the deceased of some minutes before discussing the will making and I have no doubt that Mr Wermut honestly and genuinely held the view that the deceased had testamentary capacity when she made the 2013 Will. However, with all due respect to Mr Wermut, it is difficult to see how he could have properly satisfied himself that the deceased had testamentary capacity when one of the first things she said to him was that she did not know why she was there. The fact that the deceased may have remembered why when prompted by Mr Wermut does not seem to me to be a satisfactory answer in the context where the deceased was elderly, he observed her to be not in robust health, that she lacked an agile mind, that she responded slowly and she would not engage when he attempted to ask questions about leaving Isaac out of the 2013 Will. Further red flags are the fact they conversed in Yiddish, a language which was neither the deceased's primary or secondary language (which were Russian and English) and Mr Wermut's own Yiddish was "rusty", and Mr Wermut had detected some unease and discomfort on the part of the deceased when he asked her to come in with him alone and she appeared to be dependent on Gregory and looking for assurance from him. 28. Mr Wermut did not ask the deceased about the value and extent of her estate and assumed she knew she owned the Bondi Unit based on a conversation with Gregory some years prior. He could not, therefore, say what she knew about it. 29. Mr Wermut did not ask the deceased questions to test her memory, her ability to recall and reflect on the claims on her estate or whether she had a previous will and if so, why she was changing it. Nor did he ask Gregory, who was her attorney and guardian and who had arranged the meeting, whether there was any reason to be concerned about capacity, including as a result of any diagnosis, behaviour, medication or the like (although one would expect that Gregory would have said no). 30. Mr Wermut accepted what the deceased told him in "adamant terms" that she wanted everything to go to Gregory and nothing to Isaac. He said that she explained that she saw Isaac rarely and Gregory was the one who looked after her. However, that was the same reason he gave about why she had granted Gregory the power of attorney in 2011. When this was raised with Mr Wermut in cross-examination, he said that his memories might have intermingled over the two periods of time, which raises some further doubts about the reliability of Mr Wermut's recollection of what they discussed. 31. Mr Wermut had dealt with the deceased 18 months prior and he says he concluded there were no difficulties with her capacity. However, considered objectively in light of the above matters, I am not persuaded that Mr Wermut's evidence establishes that the deceased had testamentary capacity in the sense that she had the capacity to understand the extent of the property the subject of the will or to comprehend and weigh up the moral claims of both Gregory and Isaac. 32. I accept that the deceased was likely capable of understanding that she owned the Bondi Unit although I doubt that she had the capacity to understand the real value of her estate. Testamentary capacity does not require a testator to turn their mind to the exact extent of their property or know the precise value of an estate and this was a simple estate comprising of the Bondi unit and some cash in a bank account. However, the evidence that the deceased withdrew large sums of cash for no apparent reason, was very forgetful and confused and had trouble paying bills, suggests to me that she had little appreciation of the value of money and would be unlikely to have had the capacity to understand even the general extent and value of her estate that she could dispose of by her will. 33. I consider it likely that the deceased was capable of understanding that she excluded Isaac from her will when it was made in April 2013. However, the question is not whether she knew that matter but whether she was capable at that time of comprehending and appreciating (that is, weighing) the competing interests and potential claims on her estate and deliberately forming an intelligent purpose of excluding Isaac from any share of her estate: Rofe at [140] and [146]; Re the Estate of Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 706. 34. In this case, comprehending and weighing of Isaac's claim required the deceased to be able to weigh up and make a judgment about whether there was a reason to depart from her longstanding intention of sharing her estate equally between her two sons, as provided for in the 1998 Will. That would require the deceased to be able to mentally process and consider historical facts as well as recent events, such as whether, in fact, Isaac was seeing her regularly or at all and the impact of Gregory on that. Given that the deceased had lost insight into her own condition and care needs, her short-term memory loss meant she could no longer retain information and she had shown poor judgment and impulsivity in her conduct, it is difficult to see how she had the cognitive capability to recall, reflect and reason about those matters. 35. Dr Lonie's evidence in cross-examination, where she opined about the distinction between the ability of a testator to express a view, wish or preference and their decision-making capacity, was compelling in my view. The fact that the deceased was able to express views adamantly does not lead me to conclude that she possessed the requisite testamentary capacity to weigh up and reason the competing claims in the circumstances of this case. As Dr Lonie explained, it is possible for a person with moderately advanced stages of dementia to say what they want but that is not synonymous with the person having the mental capabilities to make a considered or complex decision or say anything about testamentary capacity. This is particularly as the deceased's affections towards her sons were likely impacted by or liable to be poisoned, as Dr Lonie explained and as I accept, as a result of her cognitive impairment, which had clearly reached the stage in April 2013 where it was severe enough to compromise her social and day to day functioning. 36. Given her evident forgetfulness and state of confusion by 2013, Gregory's evidence that when he mentioned to the deceased that he found her will, she decided to change it and make him her sole beneficiary immediately and of her own volition, is highly unlikely in my view. While I do not have reliable evidence of what occurred, I consider it more probable that Gregory placed some pressure on the deceased to change her will in 2013 to favour him to the exclusion of Isaac, likely telling the deceased that it was deserved because of the care he was providing her and Isaac not being around. The observational evidence from Mr Wermut supports that finding, as do the contents of the Will Information Form, which make plain that Gregory was focused on ensuring the estate remained to his benefit from at least the late 1990s. 37. In my view, by April 2013, the combination of the deceased's age, the degree of her cognitive impairment and her physical health issues meant she was not capable of standing up to pressure imposed by others, particularly Gregory, on whose care she relied on. The significance of this is that she was also likely incapable of evaluating the strength of Gregory and Isaac's claims to her estate, not dissimilar to the position in Bracher v Jones [2020] NSWSC 1024 or the observations of White J (as His Honour then was) in Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159] and [160]. 38. I do not consider that the Sept 2013 Statement evidences that the deceased was capable of weighing the competing claims on her estate and forming an intelligent purpose of excluding Isaac from her estate. I am simply unpersuaded by Gregory's evidence that the deceased played any part in the preparation of that document. In my view, the proposition that the deceased had the mental acuity to recall and reflect and also type that statement over a period of two to three weeks is inherently implausible, given the deceased could not remember to take her medications, could not recall why she was meeting with Mr Wermut on 17 April 2013, had engaged in a home visit on 1 May 2013 without her pants on (as recorded by Ms Klahr), regularly presented as confused and forgetful (as referred to in Dr Opacic's and hospital notes and the lay evidence from Isaac, Gregory and her grandsons), and by 21 May 2013, could not count back from 20 to 1, recall an address minutes later and initially gave the year as 1912 (then as 2012), and the deceased had not used a typewriter for about 35 years. 39. Isaac's evidence that he did not recognise the signature on the Sept 2013 Statement as his mother's, and what appears to be a marked difference in that signature and the signature of the deceased on other documents she signed (such as the 2013 Will, Power of Attorney and the Appointment of Enduring Guardian]), together with the fact that the Sept 2013 Statement was created some five months after the will, close to the time when Gregory had previously acknowledged that the deceased had dementia, are also factors that raise doubts about its authenticity as having been created by the deceased. 40. For these reasons, I am not persuaded that, in April 2013, the deceased was able to weigh up her sons' competing claims to her estate or understand even in general terms the value of the property she could dispose by will. I have, therefore, concluded that Gregory has not established, on the balance of probabilities, that the deceased had testamentary capacity when she made the 2013 Will. Accordingly, the 2013 Will is not the deceased's last valid will and Gregory's claim for probate in solemn form in respect of the 2013 Will fails. 41. This conclusion is sufficient to determine Gregory's application in relation to the 2013 Will. However, in case I am wrong on the issue of testamentary capacity, I have considered the other challenges made by Isaac to the validity of the 2013 Will, although in a more summary way. Knowledge and approval 1. Assuming that testamentary capacity had been established and given there was due execution, the presumption arises that the deceased knew and approved of the contents of the 2013 Will at the time she signed it. Isaac says the presumption is displaced by reason of circumstances that exist which raise a real suspicion or doubt as to whether the 2013 Will expressed the mind of the deceased. 2. Isaac in closing submitted that the case "bristles with suspicious circumstances" that the deceased did not know or understand the contents of the 2013 Will even though Gregory did not wholly conduct the 2013 will transaction, in the sense he did not draft the document. 3. The circumstances Isaac referred to as giving rise to a suspicion are: the absence of a contemporaneous statement of reasons; the fact the will was read out to the deceased by a "rusty" Yiddish speaker; the deceased's "perfunctory response"; her hospitalisation a week after the will was made; her growing disorder of the mind; Gregory's suppression of the 2013 Will; and Gregory's reluctance to take the deceased to a geriatrician or neurologist. 4. Isaac submits that it was not enough for Gregory to rely on the presence of a solicitor when the will was signed, since a solicitor may miss signs of diminished capacity: referring to Chant v Curcuruto at [726], per Hallen J and Hoff v Atherton [2003] EWCA Civ 1554 at [64], per Chadwick LJ. 5. In response, Gregory denied that he was under any onus and took issue with each of the "circumstances" Isaac referred to as giving rise to a suspicion the deceased did not understand the 2013 Will. He said that, given her age, it was understandable his mother had taken time to compose the September 2013 Statement. He also submitted that the "onus of proof" was on Mr Wermut to show he understood Yiddish; contended that his mother was not "hospitalised" but admitted for a case application and there was no diagnosis of a disordered mind. He also said that Isaac had only alleged, rather than proven, that Gregory suppressed the 2013 Will. 6. Gregory submitted that far from suspicions that the deceased did not understand the will, her "adamant and inflexible" testamentary instructions left little doubt the will reflected the deceased's resolve to disinherit Isaac. Further, Gregory submitted that Mr Wermut's presence, as an experienced solicitor, during the signing allowed the Court to infer steps were taken to ensure the deceased knew what she was signing. 7. In this case, I consider that there are reasons to doubt whether the deceased knew and approved the terms of the 2013 Will. The existence of the deceased's cognitive impairment, the fact that the will was explained to the deceased in Yiddish and she did not read over it, and Gregory's involvement in the making of the will, including arranging for the deceased to see Mr Wermut and join the execution meeting, are matters that excite suspicion in this case. 8. If I were satisfied that the deceased had testamentary capacity, I consider it likely that she knew and approved the will. This is based on the simplicity of the will and Mr Wermut's evidence that he explained and summarised the terms of the will to the deceased and asked her if she was happy with it and she said yes, and then signed, thus signifying her understanding and acceptance of it terms. Knowledge and approval does not require a precise understanding of the value of the gift(s) under a will or legal understanding of the consequence of the will. It is sufficient if a testator is shown to have known and approved the gravamen of the will: Lewis v Lewis [2021] NSWCA 168 at [187]. 9. I should record that this conclusion was finely balanced given the evidence of the deceased's short-term memory loss and confusion by this time, the use of Yiddish as the language in which they conversed and my finding that the deceased was likely subject to pressure from Gregory when making the will. 10. However, and as to the last point, a testator may know and approve the contents of their will even though the will does not reflect their true intention because its preparation is tainted by undue influence. Approval in this context concerns whether the testator has given assent to the contents of the will of which they have full appreciation. Approval does not require that it be shown that the testator was not unduly influenced: Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [197], per Santamaria, Beach and Kyrou JJA. Undue influence 1. Isaac has the burden of establishing undue influence. 2. Isaac submitted that undue influence, in this case, emerged from the same body of evidence as incapacity, which he said was a permissible approach, citing Estate of Janakievska [2011] NSWSC 1275 [299] – [315]; Estate of Simpson [2013] NSWSC 18 [160], [173]; Mekhail v Hanna at [128]. 3. He submits that the Court could infer actual undue influence on Gregory's part, of the kind traditionally required for the law of probate to intervene. Isaac relied on Dr Lonie's report, which found that the deceased exhibited the bulk of indicia for undue influence. It was submitted that Gregory's insistent and controlling behaviour along with the deceased's cognitive decline would allow the Court to conclude that Gregory asserted a "moral command" over the deceased and used his proximity to press home the idea he alone should benefit from her will. For this inference, Isaac pointed to Gregory's control of the deceased's diet, her movements, her social life and her privacy in the Bondi Unit. He also pointed to Gregory's withdrawal of funds from the deceased's accounts, particularly the $25,000 for the "Odessa trip". 4. Isaac submitted that it did not matter that Gregory was not in the room when the deceased gave instructions to Mr Wermut in relation to the 2013 Will as he was close by and, on Mr Wermut's evidence, she kept looking to her son for reassurance. 5. Isaac also relied on Gregory's possessiveness over the Bondi Unit, evident in his cluttering of the space and his pursuit of the title documents in 2017. 6. Alternatively, if the Court was not satisfied that undue influence within probate principles was made out, Isaac submitted that equity would intervene and apply in this case principles drawn from the law of undue influence inter vivos. In particular, he said equity would analogise the present situation to that where an immature child makes a gift to its parents, which is a category of presumed undue influence: Quek v Beggs (1990) 5 BPR 11,761 at 11,764. If that approach were adopted, it would be for Gregory to disprove that he procured the will with undue influence. 7. Gregory responded by challenging each of the factors said to ground an inference of undue influence. He denied that the deceased was a "submissive individual" who could be controlled by anyone, saying that in 2013 the extent of her dependence on him was that they lived together, he cooked and provided food, and sometimes gave her lifts. He denied that there was evidence he controlled the deceased's diet, other than providing kosher food. 8. As for the visit to Mr Wermut's office, Gregory said the deceased went there freely consenting and that nothing should be read into Gregory's presence at the appointment or his mother's glances towards him (particularly in a small office). He further denied that his approach to the deceased's finances, and particularly his withdrawal of the $25,000 (which he said went mostly unused), could bespeak a controlling relationship. On the balance of evidence, Gregory submitted his relationship with the deceased was more "supportive" than controlling and that no inference of undue influence should be drawn. 9. In this case, as there is no direct evidence of pressure or coercion by Gregory on the deceased, the question is whether undue influence on his part is to be inferred from the circumstantial evidence. In my view, the answer to that question is yes. Having considered the totality of the evidence and the parties' submissions, I consider that the circumstances attending the preparation and execution of the 2013 Will raise a more probable inference in favour of undue influence than not. 10. This is primarily for the reason that even if the deceased had testamentary capacity, her cognitive impairment was, as I have said, severe enough to compromise her day to day functioning and she was reliant on Gregory for her care, which factors made the deceased extremely vulnerable to Gregory's influence and susceptible to her free will being overborne by him. 11. As Hallen AsJ (as his Honour then was) said in Petrovski v Nasev at [276]: [276] In looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual. 1. I consider it open to infer that Gregory was the person who, in practical terms, initiated the making of the deceased's 2013 Will by placing pressure on her to do so and was likely involved in its preparation by dictating what the will should provide. My views on this are influenced by the fact that I do not consider that the deceased would have instructed Mr Wermut to change her will in April 2013 other than as a consequence of Gregory's insistence, having regard to the state of her cognitive impairment. Gregory may not have been in the deceased's meeting with Mr Wermut on 17 April 2013, but Mr Wermut's evidence indicates that the deceased was psychologically dependent on Gregory and looked to him for assurance. The deceased's assertive answers to Mr Wermut and reluctance to engage in discussion may indicate a fixed and firm view, but given the context and her son's involvement in the making of the will, I have formed the strong impression that that view did not represent her own free and independent decision. 2. The observations of Ward CJ in Eq in Antov v Bokan [2018] NSWSC 1474 at [553] are apt, despite that case being about powers of attorney. The circumstance in which the 2013 Will was made is "only too reminiscent of the not uncommon spectacle of elderly people being ferried from lawyer to lawyer by one or more opposing family members in order to execute documents favouring some members of the family over others". 3. I accept Isaac's submission that Gregory asserted a "moral command" over the deceased and used his proximity to press home the idea he alone should benefit from her will. As a consequence, the deceased's own will was likely overborne by Gregory and she did not make a free and fully informed decisions when she made the 2013 Will. This represented practical coercion in my view. 4. In coming to that view, I am informed by the contemporaneous records that paint a picture of Gregory as someone who was controlling of the deceased and the impression created by his evidence that he felt that he deserved the estate because Isaac had been successful, and because he (Gregory) was undertaking the deceased's care and, therefore, had a right to use her funds. 5. As to Isaac's alternate submission relying on equitable principles of undue influence, I do not see the necessity to apply principles of equitable undue influence in a probate claim such as this, even if I were satisfied that it was open for this court to do so: Alexakis v Masters (No 2) [2023] NSWSC 509 at [692] – [702]. 6. As I understand Isaac's submission, he seeks to rely on the relationship between the deceased and Gregory as giving rise to a presumption of undue influence. The issue I have with that contention is that the relationship between an adult child and elderly parent is not one which gives rise to such a presumption. Thus, no presumption will arise absent evidence of influence and lack of independent judgment or evidence of any greater trust and confidence than ordinarily expected between parents and adult children: G E Dal Pont, Equity and Trusts in Australia (6th ed, 2015, Thomson Reuters) at [7.120]. Money claims Deed of Loan 1. As already noted, Gregory claims that Isaac owes the deceased's estate the sum of $150,000 based on the Deed of Loan. 2. Isaac does no dispute that he signed the Deed of Loan but denies any liability pursuant to it. 3. He gave evidence that the deceased (and Gregory) asked him to sign the Deed of Loan document before his marriage to Marina to protect the "family equity" in the event of divorce (by which Isaac understood his mother to mean the equity he had in the Randwick units) and threatened their non-attendance at his wedding should he not sign it. 4. Isaac says that he never received a loan for $150,000 from his parents in 1995 or in 1991. His evidence is that he received a gift of $50,000 in 1995. He says he signed the document because he did not want to destroy relations with his future in laws (which he thought would occur if his mother and brother did not come to the wedding) and he did not believe the Deed of Loan had any real legal effect because no funds had been loaned to him. He said that he protested signing because he did not believe it would do anything to protect the family equity, he did not think his mother would try to enforce it and he did not speak to his wife about the Deed of Loan or seek any legal advice in relation to it. 5. As to the 2001 Repay Document, Isaac gave evidence that he wrote the sentence that he would repay the deceased $130,000 and signed the document in circumstances where at that time, he first discussed with his mother the possibility that he might be divorcing Marina. He says that the deceased became frantic because she could not locate the Deed of Loan and as she was getting upset, he agreed to write the words (which were dictated to him by his mother), although telling her that he still believed it was a nonsense document that he was not going to use. Isaac described his mother getting the idea to do a new version of the Deed, grabbing a piece of paper and being in such a state (he described her as starting to hyperventilate and cough) that he said he would write what she wanted. 6. Isaac says that the list of handwritten descriptions and amounts under his statement that he would repay does not show repayments made by him in relation to a $130,000 loan but rather, represents a list of various expenses incurred by his mother between 2002 and 2004 unrelated to him, such as funeral expenses for her uncle, his grandmother's nursing home expenses, a loan of $3000 to Gregory to purchase a car and in relation to a group tour to Europe and the U.S.A. on 13 May 2003. 7. Isaac also said that neither the Deed of Loan or the 2001 document featured in his and Marina's property settlement when they divorced in 2006 and the deceased never raised the issue of the alleged loan (or any other loans) with him at that or any later time. 8. Gregory's evidence is that, prior to locating the Deed of Loan in 2016, he was not aware that the document existed. He deposed to his belief that it was created by Mr Achilles Paffas, who was then Isaac's solicitor. 9. Gregory gave evidence that he recognised some of the handwriting on the 2001 document as being his mother's and some as Isaac's and asserted that the amounts represented repayments on the loan of $130,000 which Isaac had agreed to repay. 10. Mr Paffas performed legal work for Isaac between 1995 and 2008 and gave unchallenged evidence that he did not recall having drafted the Deed of Loan and it was also drafted in the style of document identification that he did not use ("CHALIK.DOC 28/9/1996"). I find it likely that Mr Paffas did not create the Deed of Loan and it was likely drafted by the deceased or someone on her behalf, who I cannot now identify. Given the drafting infelicities, it is possible that it was not drafted by a lawyer. 11. Isaac submits that the Deed of Loan cannot operate as an enforceable deed against him as it is not witnessed. He also says that it does not operate as an enforceable contract because it was unsupported by consideration. He says there is no evidence that $150,000 was lent to him in 1991 and that such a loan was unlikely at that time as he was 21 years old and the idea of a loan at that time sits uneasily with Isaac's parents' later gift to him of $50,000 for the purchase price of his first unit. He points to the following matters in the Deed itself which he says make it unlikely that the Deed was intended to be binding or enforceable: recital B and clause 4 suggests that $150,000 was being lent on condition that the deed was entered into, however the deed was not created until five years after the loan was apparently made in 1991, the 'due' date was 20 years later, with no interest to accrue in the interim and no interest at all until the deceased triggered the repayment obligation (cl 7). 12. Isaac submits that it is also doubtful that he and the deceased intended to create a binding relationship on the eve of his wedding and the likelihood is that the arrangement was a falsity sprung upon him that neither of them meant to enforce. He says that whether one sees the facts as representing a lack of intent to create legal relations, referring to Chidiac v Maatouk [2010] NSWSC 386 at [177], or as a dormant plan to deceive Isaac's fiancée, referring to Lewis v Condon [2013] NSWCA 204 at [63], the end result is the same, namely, the instrument is not a binding contract. 13. Isaac also submits that it is an arrangement whereby he gave a promise for money already said to be advanced and such promises, after the event, are generally not binding; referring to Roscorla v Thomas (1842) 114 ER 496; and Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685 at [400]. 14. In oral submissions, Isaac also raised a limitation point. 15. Gregory submits that the Deed of Loan and evidence that Isaac purchased a unit in Bondi in September 1991 is adequate evidence that the loan was real and the deceased expected to be repaid. He says that consideration is evident from the purchase of the Bondi Unit and the fact that the Deed does not bear witness signature reflects the deceased's ignorance of the law and Isaac's abuse of the law. 16. As to the 2001 document, Gregory submitted that it was a valid loan document confirmed by Isaac by his signature but also by the maintained ledger of payments over several years, which records additional borrowings and repayments. He submits that subject to forensic accounting, the Court may order Isaac's financial dealings with the deceased since 1991 to be performed. 17. Dealing with the Deed of Loan first, I accept Isaac's submission that it is not enforceable as a deed as it is not witnessed. 18. Section 38 of the Conveyancing Act 1919 (NSW) provides that a deed, whether affecting property or not, shall be signed and attested be at least one witness not being a party to the deed. Attestation is the act of witnessing the execution of the deed and recording that matter by certifying that the signature (or mark) was affixed in their presence: Conveyancing Act s 38 (1A) and (1B); Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [1.6] and [2.9]. 19. In this case, there is no attestation of the Deed of Loan. The only signatures on the documents are that of the deceased and Isaac. 20. Thus, the Deed can only bind Isaac if it operates as an enforceable contract. 21. Having considered the evidence and the parties' submissions, I am not satisfied that Gregory has established the Deed of Loan is an enforceable contact such that Isaac is liable to repay the deceased's estate the sum of $150,000. 22. This is primarily because there is no evidence of any consideration passing to Isaac from the deceased in 1991, including in relation to the purchase of a unit in Bondi, which purchase was referred to in Gregory's 29 June 2023 further written submissions without any evidentiary basis. 23. Further, having regard to the following matters, I am not persuaded that it is likely that the deceased lent $150,000 to Isaac in 1991 or the Deed of Loan was intended to be an enforceable contract, notwithstanding the terms of the Deed of Loan that the deceased and Isaac signed. The matters are: Isaac and Gregory's evidence that they both purchased their first units in 1993 and 1994 respectively with financial assistance from the deceased at those times (noting Gregory that his funds were primarily from his earnings); Isaac's age and status in 1991, a 21 year old university student; the reference in the Deed to security over the Randwick Units rather than a Bondi Unit; the relatively large sum of money involved for the deceased and Roman at that time; the absence of any reference to the purchase of a unit in Bondi in 1991 by Isaac in the evidence before the Court; the timing of the Deed of Loan relative to Isaac's wedding and the family setting; and the terms of the Deed, as referred to in Isaac's submissions. 24. Considered objectively, it also seems to me that the 2001 Repay Document was intended to operate as a confirmation or variation to the Deed of Loan (which gives rise to the issues outlined above) or it is simply a promise to pay money unsupported by consideration, and thus not enforceable, noting that there is no objective evidence to suggest that in 2001 Isaac was lent a $130,000 by the deceased and the 2001 document does not, in terms, refer to the deceased having advanced the sum of $130,000 to Isaac at that time and just refers to a promise to repay by November 2001. 25. As to the amounts referred to underneath the handwritten promise, it is unclear whether they all refer to advances of money by the deceased (it seems that at least some of them are) or whether some record payments of money to her, such as the amounts referred to as "debt", noting that one of the entries, namely, "25/6/2002 $3,000 doig (debt)", is in Isaac's handwriting, which he says he wrote at the request of the deceased and it did not reflect an advance to or payment by him. 26. Even if I were to find the Deed of Loan and/or then 2001 Repay Document were enforceable as contracts (and noting that the further loan of $130,000 based on the 2001 document is no longer pressed in the TFASC), there is a further issue with these claims, namely they were statute barred as the relevant limitation period for a claim under contract is six years: Limitation Act 1969 (NSW), s 14(1)(a). This is because, pursuant to the Deed the amount of $150,000 was due and payable on 30 August 2016 and the $130,000 referred to in the 2001 document was payable by November 2001. In each case, the six-year limitation period expired before the proceedings were commenced by Gregory on 13 October 2021. 27. I should record in assessing this claim I have treated Isaac's evidence about the circumstances of his signing the Deed of Loan and the 2001 document with caution and have placed more weight on the objective evidence and the surrounding circumstances. I have also had regard to the general principle that parties are bound by the documents they sign: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [42]-[47]. 28. For the above reasons, I am not satisfied that Gregory, who bears the burden of proof in relation to this claim, has established that Isaac has an existing liability to pay the deceased's estate the amount of $150,000 based on the Deed of Loan. Is $15,000 owed to the deceased's estate by Gregory? 1. This issue concerns Isaac's claim that Gregory owes the deceased's estate the sum of $15,000. 2. Isaac's claim is based on the evidence of withdrawals from the deceased's CBA Account to Gregory for his benefit which Isaac asserts have not been repaid. 3. The evidence shows that between 5 and 11 September 2014, Gregory transferred $25,000 from the deceased's CBA account to his NetBank account. 4. Gregory gave evidence that this amount was to fund a trip that the deceased and he were going to take to Odessa. He said that after withdrawing the funds, Dr Opacic told him that he and deceased should not take this trip due to her health and he realised by the end of 2014 that the trip would certainly not take place. He says that on 16 February 2016, he paid $10,000 into the deceased's CBA account for the "unused travel" and the balance of the funds was given to him by the deceased as a loan in order to repay his visa account in 2017 and the money was kept in an account until that time.. 5. In cross-examination, Gregory accepted that by 2016, the deceased had dementia. 6. I am satisfied that Gregory is liable to the deceased's estate for the amount of $15,000. This is because, even if I were to accept Gregory's evidence that the amount was a loan, given the absence of any term setting a date for repayment, the loan is repayable on demand to the deceased's estate. 7. That said, I consider it more likely that, by 2016, the deceased's dementia had progressed to a stage where she was incapable of entering into a loan transaction of that type and Gregory retained the funds for his personal benefit without her authority or in accordance with his power of attorney, and he is thus liable to repay the money to her estate. 8. The recovery of that sum plus interest will be a matter for the executor of the deceased's estate. Family Provision Claim 1. As I have concluded that the 2013 Will is not valid, it is necessary to determine Gregory's claim for further provision on the basis that the 1998 Will provides for the deceased's estate to be shared equally between Gregory and Isaac. Legal principles 1. Before making an order for provision out of the deceased's estate, the Court must be satisfied, at the time when the Court is considering the application, that adequate provision for the proper maintenance, education or advancement in life of Gregory has not been made by the deceased's Will: Succession Act s 59(1)(c). If the Court is so satisfied, it may make such order as the Court thinks ought to be made for Gregory's maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: Succession Act s 59(2). 2. In this case, having regard to Gregory's age and circumstances, the relevant objects of any order for provision are for his maintenance and advancement in life. 3. Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and if so to what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 (Chan v Chan) at [21]. 4. The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education or advancement in life of a person, nor does it allocate relative weight to any of the various matters set out in s 60(2) to which the Court may have regard. 5. While adequacy is concerned with quantum and the word "proper" prescribes the standard of the maintenance and advancement in life, these are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its own general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Viglo v Bostin at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 (Limberger v Limberger) at [423]. 6. A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant's proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant's needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant's needs also requires consideration of the size of the estate and others' claims on it: Chan v Chan at [22]. 7. Thus, the concepts of adequate provision and the proper level of maintenance and advancement are to be assessed in the context of all of the circumstances of the case, including the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the deceased's estate. Attention may also be given to how the claimant lived and might have reasonably expected to have lived in the future: Blendell v Blendell [2020] NSWCA 154 (Blendell v Blendell) at [7]–[8]; Vigolo v Bostin at [114]. 8. The determination of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is to be guided by applying the Court's assessment of what is considered to be right and proper according to contemporary accepted community standards or what is considered to be the moral duty of the deceased: Squire v Squire [2019] NSWCA 90 at [10]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [44] (White JA), [109] (Brereton JA). 9. In appropriate cases, if the deceased was capable of and did give due consideration to what provision for a claimant's maintenance, education or advancement is proper, the Court should give considerable weight to the deceased's testamentary wishes. This approach recognises that a testator or testatrix is in a better position than the Court to make such an assessment, although the application of s 59 of the Succession Act is not confined by notions of reluctance to interfere with freedom of testation. The Court's assessment of whether there has been adequate provision for the claimant's proper maintenance and advancement in life must be made when the Court is considering the application, rather than at the time of the deceased's death or will, and requires an evaluative judgment of all of the circumstances: Megerditchian v Khatchadourian [2020] NSWCA 229 (Megerditchian) at [33], [35] (Payne JA, Macfarlan JA and Emmett AJA agreeing); Steinmetz v Shannon at [52]–[54] (White JA), [96] (Brereton JA); Sgro v Thompson at [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 (Slack v Rogan) at [126]–[127]. 10. Gregory makes his claim as an adult child of the deceased. There is no predisposition for or against making orders for provision for adult children. Thus, Gregory's application must be dealt with on its merits based on the evidence before the Court: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [166]–[169]; Steinmetz v Shannon at [37] (White JA). 11. That said, guidelines in relation to claims by adult children have developed in the authorities. They provide a useful touchstone as they constitute a reflection of community values which assists with decision-making: Steinmetz v Shannon at [106]–[108]. Hallen J referred to such guidelines in Limberger v Limberger at [473], which I respectfully adopt as follows (citations omitted): (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation". (c) Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute". (d) There is no need for an applicant adult child to show some special need or some special claim. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased. (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim. Additional facts and matters: s 60(2) of the Succession Act The relationship between Gregory and the deceased: s 60(2)(a) 1. Gregory was the deceased's eldest son. 2. There is evidence, which I accept, that they had a close mother son relationship. That said, their relationship was strained at times, as evidenced by letters that Gregory wrote, such as the one at [74] above, that described himself as the "unloved son". It is unclear what caused these tensions. Isaac's evidence suggests that it may have been related to Gregory's observant faith and controlling nature. 3. The closeness of their relationship is apparent from the fact that Gregory lived with the deceased for most of his life. In general, the deceased seems to have been socially isolated and looked to Gregory for companionship at times, such as after Roman's death. 4. Gregory moved back home in 1995, after Roman's death, and lived with the deceased until about 2000, when he moved to the United States, a move them seemed to put some strain on their relationship. Gregory lived with deceased from about 2003 to 2009 and then moved to Melbourne for a couple of years, before returning to live with the deceased from September 2011 until she left for the nursing home in October 2019. 5. In addition to a mother son relationship, Gregory took on the role of the deceased's carer, attorney and guardian from about 2011. It is apparent that the deceased's relationship with Gregory developed into one of dependence as her cognitive capacity declined, with the deceased becoming reliant on Gregory to manage her day-to-day activities. I would characterise Gregory's relationship with the deceased in these later years, from 2012 onwards, as controlling and dominant. 6. Gregory had little contact with the deceased after her move to the nursing home. The nature and extent of any obligations or responsibilities owed by the deceased to Gregory and to any beneficiaries: s 60(2)(b) 1. The 1998 Will recognises Gregory and Isaac as the natural object of the deceased's testamentary bounty, with them recognised as equal beneficiaries. 2. There is no presumptive testamentary entitlement of an adult offspring: Underwood v Gaudron [2015] NSWCA 269 at [73]. The question of the extent, if any, of a continuing moral obligation or responsibility owed by the deceased to Gregory and to Isaac as the other beneficiary can only be considered in the context of all the circumstances in this case. 3. Gregory's submissions suggest that his mother owed him some kind of obligation because he "uprooted" his life in Melbourne to care for her. 4. Isaac's submissions emphasised the care he provided to the deceased, particularly in the years Gregory was living in the United States and in Melbourne. His evidence was that he also gave her moral support and added to her social life. The deceased's estate: s 60(2)(c) 1. As noted above, the Bondi Unit was sold in June 2021 for $1,620,000, when the NSW Trustee was managing the deceased's estate, and on 24 February 2022, Ms Ross-Maranik was appointed interim administrator for the purposes of collecting and preserving the deceased's assets, paying any of her or her estate's liabilities, establishing and operating bank accounts for the estate, otherwise managing certain estate business and paying the interim distribution to Gregory. 2. On 15 March 2022, Ms Ross-Maranik received the amount of $1,642,405.12 from the NSW Trustee, representing the total funds of the deceased's estate, which by that time consisted solely of cash. 3. As already noted, on 24 February 2022, Hallen J ordered interim distribution of $250,000 from the deceased's estate to Gregory. After her appointment as administrator, Ms Ross-Maranik paid that amount into a trust account operated by Gregory's then-solicitor, Mr Adamson. 4. After taking into account the interim distribution, funds received from CBA from the closure of accounts (of $176.21), Ms Ross-Maranik's fees (of $7,700) and estimated net interest (of $17,350), Ms Ross-Maranik estimates the value of the deceased's estate that she currently holds to be $1,402,231.89. 5. When the $250,000 interim distribution is added back in, the value of the deceased's estate is estimated to be $1,652,231.89 [2] . There are no identified estate liabilities. 6. As I have found, Gregory also owes the deceased's estate the amount of $15,000. 7. Based on the above (and excluding legal costs), Gregory's and Isaac's entitlements under the 1998 Will are $826,115.95 each. As Gregory has already received $250,000, he would be entitled to receive the amount of $576,115.95 which, less the $15,000 he owes the estate, is $561,115.95. 8. Gregory deposed that Mr Adamson estimated his legal costs to 15 April 2023 to be $150,000 (excluding GST) and his estimated costs and expenses for completion would likely exceed $200,000 (excluding GST). No effort was made to distinguish between the two sets of proceedings, costs and disbursements or what the costs would be on an ordinary basis, as distinct from an indemnity basis (which I assume is the basis reflected by the figures provided). 9. Isaac's legal costs and disbursements for both proceedings, including costs paid to counsel and Dr Lonie, were estimated to be $132,220 (including GST) to the conclusion of the hearing, on the basis of a three-day hearing. Like Gregory, Isaac did not estimate his costs on an ordinary basis and I have assumed that his costs were estimated on an indemnity basis. 10. The parties' costs may reduce the value of the deceased's estate that is available for distribution. The issue of costs is somewhat complicated by the inclusion of the probate claims, in respect of which Isaac has succeeded. However, assuming that all costs are payable out of the estate, the net value of the deceased's estate would be $1,310,205.20. Gregory's personal and financial circumstances (including earning capacity) and needs and the financial circumstances of any person with whom he is cohabitating: ss 60(2)(d), (e), (f) and (g) 1. Gregory is presently 60 years old. He is unemployed and lives by himself in a van with a number of dogs on a property that he leases outside of Tamworth. He is unmarried, has no partner and no children. 2. Gregory says that he has an elbow prosthesis, which means he cannot lift more than 10 kgs with one arm, suffers from hypertension and temporary vision impairment. He says this limits him to remote work only. 3. Isaac contends that Gregory's evidence about the disability in his arm should be rejected as it was not mentioned in his affidavits and is uncorroborated. 4. I place little weight on Gregory's contention about his elbow given he did not adduce any evidence, by way of a medical report from a GP or otherwise, that supports his claim of a disability in his arm which restricts his ability to work. 5. As noted earlier, Gregory did not complete year 12 and says that he struggled with school. According to Gregory's LinkedIn profile, his early jobs were as a taxi driver, a baker, a bank clerk and he studied at the University of Sydney between about 1996 and 2000. 6. Gregory gave evidence that in order to return to Sydney, he was forced to end his part time employment doing "database/sales". That employment or role is not listed on Gregory's LinkedIn profile and there is no documentary evidence corroborating he was employed in that role or how much he was paid. 7. On his LinkedIn profile, Gregory's present roles are listed as "concept designer" and "enterprise solutions analyst/professional military concepts designer". Neither role appears to be associated with an employer or paid work. The profile also lists Gregory's activities as including "military research" generally. 8. Gregory says that between 2011 and 2014, he attempted to start a consultancy business in the defence industry which required research of his own initiative for which he was not paid. In 2012, he received a government allowance, similar to Newstart, and received a carer's allowance in relation to the deceased from 2014. 9. Gregory says that due to his limited connections in Sydney and age, he believes that there are few prospects for him to restart his career in Tamworth or anywhere. Gregory's evidence about his limited job prospects was disputed by Isaac who produced evidence of a search of "Seek.com.au" on 11 April 2023 which indicated the availability of 448 jobs within 10km of Tamworth which he said may be suitable for Gregory. 10. Gregory has no property, no superannuation and no income other than a fortnightly payment of $740 of unemployment benefits. 11. The unit Gregory owned in Coogee was sold in around 2000 and the funds were used to further his Jewish cultural education and his move to the United States. 12. Gregory's main asset is a 1996 Mitsubishi Delica van, which he lives in. He estimates the van's value (as at April 2023) to be about $6000. He says he has no other assets of substantial value due to them being destroyed in storage during storms in 2021. 13. As at the date of the hearing, Gregory had $2382 in his bank account, owed about $2936 on his credit card and paid rent of rent of approximately $440 per month. 14. Gregory had, by 17 March 2022, received $59,813.10 of the $250,000 interim distribution for his personal use, which he has used to repay a personal loan, buy a new laptop, portable shower system, PC tablet, new clothing, pay $24,000 on his credit card, $10,000 for the deceased's gravestone, repairs to his van and pay for legal costs. 15. Gregory's did not disclose any liabilities, although, as I have found, he owes $15,000 to the deceased's estate. It also seems that he may owe money in relation to the $98,000 which Fagan J ordered Gregory to repay to the deceased's estate, although I am unable to determine how much. 16. An issue that arose in submissions was the adequacy of Gregory's production of documents relating to his financial position. Isaac pointed to Gregory not having produced his credit card statements and the late production of bank statements (which were also limited) which raised questions as to the source of funds. 17. Gregory's bank accounts disclosed that deposits were made into Gregory's account on 5 May 2022 of $698.00; on 17 and 18 May of $716.93 and $3,363.00; on 19 and 23 May 2022 of $5,700.00 and $3,000.00; on 20 July 2022 of $1,000.00; and on 27 July 2022, of $3,387.30. In cross-examination, Gregory could not recall the source of the funds deposited. 18. It is incumbent on an applicant for provision to disclose to the Court as fully and frankly as possible all details of their financial and material circumstances: Stone v Stone [2019] NSWSC 233 at [60]. A Court may dismiss an application if the inadequacy of disclosure is such that a claimant fails to satisfactorily prove a crucial element of their financial situation, such as income and expenditure: Blendell v Blendell at [29]. 19. I accept that Gregory's financial disclosure was not satisfactory as it did not enable the Court to have a precise and accurate understanding of what his spending habits are and where all of his funds were coming from. 20. However, no submission was made that the inadequacy of the disclosure was such that Gregory's claim should be dismissed. Further, overall, the material produced provides a sufficiently broad picture for the Court to assess how his financial position has changed since he lived with the deceased and his current assets, liabilities and earning potential. 21. In terms of his future needs, due to his five dogs, Gregory seeks to purchase a semi-rural property/hobby farm (2-10 acres) allowing for developing a home-based small business and horticulture. His evidence also referred to perhaps running some horses as well. He gives evidence that he would need in excess of $800,000 to buy a property in or near Tamworth with acreage suitable for these purposes and about $20,000 for furniture and yard equipment, including a ride-on mower. 22. Gregory says that self-employment is the most viable option for generating income in the future. He wants funds to start a small 3D printing and manufacturing business, which he estimates would involve costs of $160,000, comprising: $20,000 for a 3D printer and scanner; $20,000 for a large shed; $40,000 for a late-model van and $50,000 in wages for an assistant. Gregory accepts that the business would be unlikely to be profitable for at least 3-7 years. 23. Gregory seeks $3,000 for dental work which he says he was forced to neglect. He also says that he desires to marry and perhaps became a father, referring to the Wilhelmina of the Netherlands, whose father was 63 years old at her birth. 24. A few observations may be made about Gregory's claimed needs. 25. First, I am unpersuaded that Gregory needs a property with acreage given there is no evidence he has lived in a rural setting with horses, been involved in horticulture and what he says about the effects of his disability on his ability to lift things. 26. Second, Gregory did not provide any examples of the cost of suitable housing in Tamworth to support his claim for around $800,000. The evidence adduced by Isaac suggests that 2 to 3 bedroom house in the Tamworth area on a block that appears suitable for dogs (ranging from 556 to 862 square metres) would likely cost between $240,000 and $300,000. Isaac also adduced evidence that a ride-on mower would cost as low as $3500. 27. Third, although Gregory said he had explored the possibility of starting a 3D printing business in 2013 when he originally returned to Sydney and had done some research, he has no experience or training in the 3D printing industry, no experience owning and operating a business and had no business plan to start the business he described. Gregory is to be commended for considering self-employment options. However, it is difficult to accept that his needs extend to funding for a new business in which he has no prior experience and, on his own evidence, is not expected to make a profit, and presumably will not generate a source of income, for up to seven years. The personal and financial circumstances and needs (if in issue) of Isaac, as the other beneficiary: ss 60(2)(d) and (f) 1. Isaac is presently 53 years old. He has two adult children, Richard and Nathan, from his first marriage to Marina who are not dependent on him. He has been married to his second wife, Hannah, since 2010. Isaac works as a mortgage broker and lives in a home he owns in Tacoma, New South Wales. 2. Gregory's submissions assert that Isaac is quite wealthy, alleges that he owns at least three properties in addition to his personal home, valued in excess of $6 million. Gregory's assertions were not supported by evidence. 3. Isaac did not raise his financial circumstances as a competing financial claimant or make any specific disclosure of his financial circumstances. Nevertheless, the Court cannot disregard Isaac's interests as a beneficiary of the deceased's estate. He is entitled to rely upon the terms of the deceased's 1998 Will and the fact that he is a chosen object of the deceased's bounty. In the absence of evidence from Isaac, the Court may draw an inference that he has sufficient income and resources to meet his needs: Succession Act s 61(1); Blendell v Byrne at [113]–[118], citing Tobin v Ezekiel at [94]; Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [68] per Sackville AJA. Gregory's contributions to the deceased's estate or welfare: s 60(2)(h) 1. As set out above, Gregory says that he deposited all the money he earned when he left school for about four years (from age 17 to 21) into his parent's account and the funds were used towards the mortgages on the Waverley and Bondi Units. I am unable to determine the value of that contribution but accept Gregory's evidence that he made a financial contribution that benefited the deceased and her estate. 2. Gregory also provided ongoing companionship to the deceased and undertook all her care needs from late 2011, for which he received a carer's allowance from 2014. Notwithstanding the debate about the quality of care and Gregory's controlling nature, the ongoing care that Gregory provided to the deceased from 2011 involved a substantial contribution to her welfare over a number of years. 3. Gregory says that due to his obligation to care for his mother full-time, by 2011, he had put his whole life on hold, exhausted any savings and became dependent on her for accommodation. Any provision made by the deceased for Gregory during the deceased's lifetime or made from the deceased's estate: s 60(2)(i) 1. I have already referred to the provision made for Gregory under the 1998 Will and financial assistance when he bought the Coogee unit in 1994. According to Gregory, his parents gave him $46,432.71 towards this purchase, a figure that included $38,000 of Gregory's own money which he had banked into his parents' account. Isaac says that their parents gifted Gregory an amount that allowed him to purchase the Coogee unit. Whatever the amount of the gift was, it was common ground that it enabled Gregory to purchase the unit. 2. In about 2002, the deceased lent Gregory $3000 to buy a car. He says he repaid that amount in 2012, although no documentary evidence supporting repayment was provided. 3. During his adult life, the deceased also provided Gregory with rent free accommodation. He also did not pay for utilities, rates and levies. 4. To this I would add the provision made for Gregory by way of the money withdrawn from the deceased's account after 2012, some of which has been repaid and some of which he described as loans. The deceased's testamentary intentions, including evidence of statements made by the deceased: s 60(2)(j) 1. The deceased's testamentary intentions are made clear by the 1998 Will. 2. The deceased had made a previous will in 1997 which left everything to Gregory. There are no documents in evidence at that time which set out the reasons for this although Isaac and Gregory's evidence suggest that it may have had to do with the fact that the deceased and Isaac's first wife did not get on and the deceased may have felt cut out from seeing her first grandson, Nathan. 3. The creation of the 1998 Will, only one year later, points to an improved relationship between Isaac and the deceased, a recognition by the deceased of her moral obligation to him, as well as concerns about the nature of her relationship with Gregory, as evidenced by the contents of the Will Information Form, which refer to Gregory as dominant and difficult and having a fear of losing her estate. 4. I have already dealt with and explained why I do not accept that the Sept 2013 Statement accurately sets out a statement of the deceased's testamentary intentions in 2013. 5. Gregory also gave evidence that the deceased thought Isaac could take care of himself and expressed that view up until the day she died. I am unable to place much weight on that evidence given it is uncorroborated, inconsistent with the wishes expressed in the 1998 Will and my findings about the deceased's cognitive capacity and inability to reason. Whether Gregory was being maintained, either wholly or partly, by the deceased before her death: s 60(2)(k) 1. Gregory was maintained to a significant degree by the deceased before her death by the provision of rent-free accommodation until he had to vacate the Bondi Unit in September 2020. 2. Gregory was also partially maintained in the sense that he had access to and used money form the deceased's CAB Account for his personal items, such as kosher food, payment of Mr Wermut's invoice to Gregory, tuition fees and other loans. Whether there is anyone else liable to support Gregory: s 60(2)(l) 1. No other person is liable to support Gregory. As already noted, he receives unemployment benefits. Gregory's character and conduct: s 60(2)(m) 1. I have already referred to and dealt with aspects of Gregory's conduct and character. As I have found, he accessed and used money from the deceased's bank accounts for his benefit, including transferring large sums when the deceased's estate was under the management of the NSW Trustee. 2. I have also found that Gregory placed pressure on and unduly influenced the deceased into making the 2013 Will and sought to rely on the Sept 2013 Statement, which I do not accept as the deceased's document. Isaac submits that Gregory's misconduct in that regard is notable and a significant factor that weighs against the grant of any family provision relief in favour of Gregory. 3. Isaac also says that the standard of Gregory's care for the deceased is a facet of his character and conduct, referring to the state of the unit and his mother and Gregory saying little about the actual care he provided at a daily level. Conduct of the other beneficiaries: s 60(2)(n) 1. Gregory contends that Isaac was unsupportive of the deceased across her life. He says that, after Roman died in 1995, Isaac seldom visited the deceased and participated little in her care. He referred to Isaac and Marina restricting the deceased from seeing her grandchildren and he and the deceased not being invited to Isaac's second wedding in 2010. Gregory says that Isaac's limited support for the deceased continued into her period of declining health, after 2010 and referred to a conversation in late 2010, during which the deceased complained Isaac rarely visited her or helped her. 2. Isaac disputed many of Gregory's contentions. He denied that he kept the deceased from her grandchildren, explaining that while married to Marina, he preferred to meet the deceased in public places with his children rather than visit her in the deceased's apartment, so that he could spend time with her without Gregory. 3. Isaac admitted that there was conflict between Marina and the deceased but denied the deceased was not invited to his second wedding. According to Isaac, the deceased did not attend because of a threat from Gregory who was not invited to the second wedding. 4. Isaac says that he visited the deceased frequently when Gregory was in America and Melbourne, took her to medical or social engagements and otherwise looked after her. He says he took on greater caring responsibilities during those periods, had a good relationship with her and that he and his sons continued to visit and see her, despite the difficulties they encountered from Gregory. 5. It is neither possible nor necessary to resolve all of the factual disputes raised by the parties' submissions. Whether or not Isaac invited Gregory to his second wedding is not significant in my view. Isaac's evidence that he invited his mother and she declined to come seems plausible as it was possibly due to Gregory's absence although I also note the hospital records suggested that the deceased did not get on with Hannah. 6. In general, I am satisfied that Isaac maintained a familial relationship with the deceased throughout her life and accept that he provided her with care and assistance, such as taking her to medical appointments and the like, more often when Gregory was not around. I also accept his evidence that he spent time with her later in life, when she was a resident at the nursing home closer to where he lived. 7. However, what is clear from the evidence is that the relationship between Gregory and Isaac was strained (and continues to be so) and it was that relationship which likely impacted the extent to which Isaac saw the deceased and the closeness of their bonds. 8. Gregory also alleged that Isaac seized the deceased's personal property while admitted to the Bondi Unit while Gregory was in Tamworth. Gregory seeks the return of the property or damages in the amount of $20,000 from Isaac or the NSW Trustee as the property has sentimental value and remains estate assets. 9. Leaving to one side that I have seen nothing in the evidence to support that allegation, as it was not pleaded and Gregory did not identify what personal property was taken, I do not deal it. Any other matter considered relevant: s 60(2)(p) 1. In his further written submissions, Gregory alleges that his parents miscalculated in deciding to immigrate during his early teenage years (a decision Gregory says was dominated by the deceased) and this led to his failure to adjust in Australia and to pursue a normal education and career paths as Isaac did. He submits that his attempts to rectify his failure to integrate into the community and commence a family of his own were interspersed by the need to support the deceased in her time of grief after Roman died and he was finally impacted by her self-imposed health issues from 2009 to 2014, which required him to ultimately commit nearly a decade of his life to her care. 2. I accept that the move to Australia was likely challenging for Gregory. However, the facts in this case do not, in my view, demonstrate that the deceased's conduct in that regard was somehow to blame for Gregory's current circumstances or that his role as carer was thrust upon him by the deceased, such that he had no choice to undertake it. That is not to say that Gregory's role as carer is unimportant in this case. Rather, it is to explain why I am not persuaded by the thrust of Gregory's contention outlined above. Consideration and determination 1. There is no dispute that Gregory is an eligible person to make an application for further provision from the deceased's estate: Succession Act s 57(1)(c). 2. There is, however, a threshold issue concerning the time Gregory commenced the proceedings. 3. An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise orders, on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time: Succession Act s 58(2). 4. The Court may decide to extend time under s 58(2), which is a discretionary decision. Sufficient cause must be shown for bringing a late claim. The Court will look to factors such as whether the beneficiaries' interests would or might be affected by the making of an order to extend the time or prejudiced because of the delay; whether there has been conduct on the part of parties which might justify the grant or refusal of the application to extend time; and the strength of applicant's case: Verzar v Verzar [2014] NSWCA 45 at [23], [24] and [25] (Meagher JA). 5. Gregory commenced the Succession Proceedings on 15 November 2021 which, as noted above, sought an interim distribution from the deceased's estate. His claim for an order for final further provision was included in his amended summons filed on 25 November 2022. Prior to this, Gregory's summons had only sought liberty to apply for final provision, upon giving seven days' notice. 6. Isaac contends that this means that Gregory's application has been brought out of time because the application for final relief was made more than 12 months after the deceased's death. He does not consent to an extension of time and says that Gregory has not shown sufficient cause why he should be allowed to say he needs further provisions beyond his expected half share under the 1998 Will. 7. In my view, Isaac's position and submissions on this issue raise a matter of form and fail to take into account the substance of what happened in the case. It may be correct that the prayer for relief seeking final provision was not included in the amended summons until 25 November 2022, but the parties (and the Court) had to that time proceeded on the basis that Gregory's claims included a claim for further provision in the event that the 2013 Will was held to be invalid, as was apparent from the pre-trial directions and affidavits filed before October 2022, the date on which the hearing was originally listed to take place (and which hearing date was vacated). The late amendment to include a prayer for relief seeking final further provision simply regularised what the parties had themselves prepared for and was necessitated by what appears to have been a pleading oversight by Mr Adamson. There was no prejudice to Isaac when the Court allowed the amendment to be made and none when the hearing was conducted and no late change of mind on the part of Gregory to pursue a case which he had delayed commencing. 8. For these reasons, and leaving to one side whether such an order is strictly necessary having regard to s 65(2)(c) of the Civil Procedure Act 2005 (NSW) (CPA), I am satisfied that it is appropriate to exercise my discretion and grant Gregory an extension of time to bring the application for a family provision order, even though for reasons which I will come to, I have ultimately decided that Gregory is not entitled to final relief for provision in this case. 9. The remaining issue for determination is whether the Court is satisfied, at the time of considering Gregory's application, that the deceased's will failed to make adequate provision in life for his proper maintenance or advancement and, if so, what provision ought to be made. 10. Gregory submits that based on the facts as presented to the Court, he is the only person eligible to benefit from the deceased's estate and is entitled to the full value of the estate. He relies, in particular, on his consistent and long-term commitment to the deceased's welfare since Roman's death. In support of his claim to the totality of the deceased's estate, Gregory also says he needs the rest of the deceased's estate to live, and that Isaac has failed to adduce any relevant factual evidence of his close and personal relationship with the deceased except for the palliative part of her life and also failed to adduce evidence that he is lacking in means to support and educate himself. 11. Isaac submits that Gregory is not entitled to any more than an equal share of the deceased's estate as provided for under the 1998 Will, which is a substantial distribution and is adequate provision for Gregory as it would allow him to buy a property mortgage free. Isaac submits that Gregory's stated needs, mostly relating to his planned 3D printing business, are unmeritorious and reflect a desire to start a business "risk-free", rather than a genuine need. He also maintains that the deceased was consistent, in the 1980 and 1988 wills, in balancing her two sons' entitlements and the Court should not depart from that balanced position. 12. Isaac's submissions also contended that Gregory's application is "one of the most unmeritorious and solipsistic claims one could imagine" and that Gregory's conduct has done nothing to advance it. Isaac says that the deceased was conscious of Gregory's dominant behaviour and "in good conscience" gave him an ample half of her estate, and it is not proper for him to now be allocated more. In that regard, Gregory contends that the interim distribution already made should be deducted from that equal share. 13. Whether the deceased made adequate provision for Gregory is a question of objective fact to be determined as at the date of hearing. In making that determination, the role of the Court is not to achieve an overall fair disposition of the deceased's estate, seek to rewrite the will based on notions of equality or engage in an exercise of addressing any sense of wrong, hurt feelings or disappointed expectations. The Court's role goes no further than determining whether "adequate" provision for Gregory's "proper" maintenance, education and advancement in life has been made by the deceased's 1998 Will and, if not, the making of provision taking into account all the circumstances of the case: Steinmetz v Shannon at [95]–[97] (Brereton JA); Meres v Meres [2017] NSWSC 285 at [114]; Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at [8]. 14. Applying those principles, I do not accept that Gregory's submission that the fact his financial position is worse than Isaac's or his feelings that Isaac has had better opportunities in life are significant to or greatly assist in a consideration of the issues for determination. 15. The question whether the deceased's 1998 Will made adequate provision for Gregory's proper maintenance or advancement in life must be considered in the context of the totality of the relationship between the deceased and Gregory, the relationship between the deceased and Isaac, the size of the deceased's estate, Gregory's needs and the Isaac's position as the other beneficiary, having regard to the evidence summarised above concerning their financial and all the other circumstances. 16. Having undertaken an evaluative assessment of the circumstances and weighed all of the evidence and submissions, I do not consider they justify a conclusion that inadequate provision has been made for Gregory's proper maintenance and advancement in life or that further provision for Gregory should be made in addition to the half share that he can presently expect to receive. 17. The deceased considered the claims of Gregory and Isaac when she made the 1998 Will and due consideration and weight to her wishes should be given, although they are not determinative: Sgro v Thompson at [6] and [86]; Slack v Rogan at [127]. 18. At the time the deceased made the 1998 Will, Gregory was 35 years old, living with the deceased in the Bondi Unit in Sydney and, I infer, working in paid employment (possibly driving a taxi or working as a bank clerk), and he also owned the Coogee unit. 19. However, what is relevant is the position Gregory was in at the hearing, which is different to that in 1998. As outlined above, by 2023, Gregory was in a precarious financial position and had significant needs. His only regular income is unemployment benefits and he lives in a van located on a vacant block of land in Tamworth with five dogs. Although Gregory failed to establish that his physical impairments limit his ability to work, having regard to Gregory's age, the fact that he has not been in paid employment for many years (since at least 2011 when he came back to Sydney to live with the deceased), and was the deceased's carer for at least six years, satisfies me that Geoffrey's prospect of gaining future paid employment is low, even noting the long list of jobs available in the Tamworth area. 20. As to Isaac's position, as he has not put his financial circumstances before the Court, I proceed on the basis that he is financially secure and can provide for himself and is in a better financial position than Gregory. 21. However, the assessment of whether Gregory was left with adequate provision and what is proper for his maintenance and advancement is not made only on his financial position, including when compared to that of Isaac, as the other relevant party whose interest must be taken into account as a named beneficiary under the 1998 Will: Megerditchian at [33], quoting Sgro v Thompson at [6] (White JA). The Court must consider all the circumstances. 22. I have described and made findings about the relationship between the deceased and Gregory and between the deceased and Isaac, the contributions made by Gregory to the deceased and what provision she made for him over her lifetime. 23. I am satisfied that Gregory had a long-standing familial relationship with the deceased. He provided companionship for the deceased and made significant long-term contributions to her welfare and care over the years. There is no doubt that the deceased's needs increased substantially over the years and Gregory bore the day-to-day burden of that, particularly when providing full-time care to her from 2011. 24. Isaac had a continuing mother son relationship with the deceased. Viewed objectively, Isaac's relationship with the deceased was less close than the one she had with Gregory and Isaac's contributions to her care and welfare were more limited over the years, no doubt driven by the tension and difficulty in the brothers' relationship rather than that between Isaac and the deceased. 25. That said, Gregory benefitted financially from living in the Bondi Unit rent-free for many years and there are legitimate questions about the quality of aspects of the care that Gregory provided to the deceased later in life. He was recognised to be difficult and controlling by the deceased and others, and I am satisfied that the evidence establishes those matters. 26. There are other matters which, in my view, are relevant to a consideration of whether the adequate provision for Gregory's proper maintenance and advancement in life and how a competent and informed testator would make the decision regarding the deceased's estate as at the date of the hearing. Those matters are the facets of Gregory's conduct and character outlined above, in particular, the manner in which the 2013 Will came about, the creation of the Sept 2013 Statement and the access to and withdrawals of money by Gregory from the deceased's bank account for his own benefit, all of which in my view, demonstrate that Gregory took advantage of the deceased's declining cognitive capacity. 27. In making a determination whether to interfere with freedom of testation, the Court should consider the "moral duty" of a testator to make provision. There may not be much difference between what "community standards" expect a person in the position of the deceased to do by way of provision for the plaintiff and what the deceased is morally obliged to do in that respect: Steinmetz v Shannon at [44], [46] and [109]. 28. Gregory's conduct from 2011 did not impact the deceased's will making in 1998. However, the relevance of his conduct is whether, in all the circumstances and particularly having regard to those matters, it would be expected by members of the community, when considering the position at the date of the hearing, that the deceased should have made greater provision for Gregory that she did under the 1998 Will: Walker v Walker [1996] NSWSC 188; Goldberg v Landerer [2010] NSWSC 1431. Put another way, was the deceased under a moral duty to make further provision for Gregory that a half share of her estate? In my view, the answer to those questions is no. 29. In this case, I am not persuaded that the deceased was morally obliged or required by community standards to provide more to Gregory than she did by way of her testamentary disposition under the 1998 Will having regard to the circumstances of the case as at the date of the hearing, particularly those matters referred to at [509] and [510] above. In coming to that conclusion, I take into account the size of the deceased's estate and the legacy Gregory will receive. 30. This is not a case where Gregory has been left nothing and the size of the estate, while not large, is not insubstantial. The provision made for Gregory, which is estimated to be $826,115.95, should provide him with sufficient funds to buy suitable accommodation in Tamworth mortgage-free, undertake his dental treatment, acquire furniture, a ride-on mower and a later model second hand car and leave him with a buffer for contingencies in life (which he may use to set up a business if he desires) of around $220,000, even assuming that he has already spent the entirely of the interim distribution made to him ($250,000) on his daily needs and his legal expenses. (This calculation assumes Gregory spends $300,000 on a house, $3000 on dental care, $5,000 of a ride on mower, $10,000 on furniture and $20,000 on a later model second hand car and returns $15,000 to the estate). 31. Having regards to all the facts known at the date of the hearing of the application, I consider that the provision made for Gregory under the 1998 Will is adequate provision for Gregory's proper maintenance and advancement in life. 32. If I am wrong to conclude that adequate provision had not been made by the deceased's 1998 Will for Gregory's proper maintenance and advancement in life, I would not have accepted that the amount of provision sought by Gregory, namely the entirety of the deceased's estate, would be appropriate. 33. In the event the 2013 Will is invalid (which is the circumstances on which Gregory's family provision claim is to be determined), I consider that for Gregory to receive an additional amount of $826,115.95 (giving him over $1.6 million) is more than required for adequate provision for his proper maintenance and advancement in life. Nor do I consider that the circumstances of this case warrant Isaac being excluded from the deceased's estate entirely. 34. In my view, if I am wrong, the better approach would be to allow Gregory to retain the interim distribution of $250,000 and divide the remainder of the estate (of $1,402,231.89) in half, thereby providing Gregory with total provision of $951,115.95 and Isaac with around $700,000 before taking into account Isaac's legal costs. 35. However, as I have explained, the better view is that Gregory's claim for further provision from the deceased's estate should fail. Conclusion, costs and orders 1. I have concluded that the deceased did not have testamentary capacity when she made the 2013 Will. Accordingly, Gregory's claim for probate in solemn form in respect of that will fails. 2. I have also concluded that the 1998 Will is a valid will. It follows that probate in solemn form of the 1998 Will should be granted in accordance with the orders sought in Isaac's cross-claim. 3. As to whom probate should be granted, I am satisfied that it is appropriate to appoint Ms Ross-Maranik as executor, noting that the NSW Trustee has renounced any right to probate under the 1998 Will. Ms Ross-Maranik has consented to being appointed as executor of the deceased's estate, has some knowledge of the estate from her court appointment as interim administrator and has agreed to charge the legislative scale fees (based on the gross value of the estate). 4. As to the money claims, I have concluded that Gregory has not established that Isaac has an existing liability to pay the deceased's estate the amount of $150,000 based on the Deed of Loan but Gregory is liable to the estate in the amount of $15,000. 5. As to Gregory's claim for further provision under s 59 of the Succession Act, I was satisfied that Gregory should be granted an extension of time to make his claim but concluded that the provision made for Gregory under the 1998 Will was adequate provision for Gregory's proper maintenance and advancement in life and thus, refuse his application for further provision. 6. As for costs, Isaac submits that Gregory should be ordered to pay Isaac's costs without any indemnity from the deceased's estate. 7. Gregory's submissions seek for Isaac to pay his costs on an indemnity basis, including full disbursements to Dr Lonie, referring to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.45. Gregory also says that the Court should direct that his costs be paid out of Isaac's disclosed assets and the Court should deny costs payments to Isaac from the deceased's estate in an amount greater than $1. 8. The general rules applicable to the award of costs apply in probate and family provision litigation: Ballam v Ferro (No 2) [2022] NSWSC 1358 at [77]–[80]; Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 (Estate of Guamani) at [185]–[190]; Rofe at [652]–[658]. 9. The Court therefore has a broad discretion to award costs under s 98 of the CPA and the UCPR, which provide that costs follow the event and are calculated on the ordinary basis unless the Court considers that some other costs order should apply: UCPR, rr 42.1, 42.2 and 42.20. 10. The Court's discretion is unfettered but must be exercised judicially and with regard to the principle that the award of costs is compensatory in nature, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44]. 11. The Court has also recognised that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual course in accordance with the rules referred to above. As noted by Gaudron J in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at [522] : Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Succession Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate. (citations omitted) 1. Given the outcome of the claims, I see no basis for making the costs orders sought by Gregory. 2. ln coming to my decision on Gregory's application for family provision, I have taken into account Gregory's own legal costs (as covered by the amount already received by way of interim distribution) but did not take into account the payment of Isaac's costs of $132,220 which, if ordered on an ordinary basis, would presumably be closer to $100,000. 3. If Isaac were to receive an order that Gregory pays Isaac's costs out of Gregory's entitlement in the estate, it would reduce the value of Gregory's entitlement from the deceased's estate by an amount that would have impacted my ultimate decision, given it would have reduced the buffer for contingencies by half. 4. In all of the circumstances, I am of the view that the overall justice of the case is best served by not applying the usual rule that costs follow the event and that no order should be made for Gregory to bear the burden of Isaac's legal costs, with the practical outcome that each party should bear their own costs from the amount they receive from the deceased's estate. 5. Accordingly, I will make no order as to costs with the intent that each party bear their own costs of both sets of proceedings. 6. For these reasons, I make the following orders: In proceedings 2021/296823: 1. The will dated 29 October 1998 of the late Margaret Chalik (deceased), who died on 20 July 2021, be admitted to probate in solemn form. 2. Probate in solemn form of the will made on 29 October 1998 of the deceased be granted to Ms Monica Ross-Maranik. 3. Dispense with the requirement to publish notice of this grant. 4. The proceedings be remitted to the Probate Registrar to complete the grant in accordance with the Rules. 5. The third further amended statement of claim filed by the plaintiff on 27 April 2023 be dismissed. 6. Dismiss the first defendant's/cross-claimant's claim for a full accounting (which was not pressed) and in lieu thereof declare that the plaintiff is liable to pay the amount of $15,000 to the estate's executor as monies owing to deceased's estate. 7. Order (6) may be satisfied by the executor's application of a set-off of any of the plaintiff's entitlements in the deceased's estate. In proceedings 2021/326779: 1. Pursuant to s 58(2) of Succession Act 2006 (NSW), the time for the making of the plaintiff's application for a family provision order be extended to 25 November 2022. 2. Otherwise dismiss the plaintiff's claim for further provision from the deceased's estate. In both proceedings: 1. As between the plaintiff and the first defendant, no order as to costs in relation to both proceedings with the intent that each party bears their own costs. ******** Endnotes 1. This number is indecipherable. 2. Ms Ross-Maranik's 14 April 2023 affidavit (at [7]) includes sums that appear to have treated the $250,000 interim distribution incorrectly, thus giving lower amounts for the value of the estate with and without the interim distribution. Amendments 16 February 2024 - Formatting fixed. 19 February 2024 - Typographical corrections and other minor clarifications. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2024