Supreme Court New South Wales Medium Neutral Citation: Seliametis v Kououyiannis [2013] NSWSC 171 Hearing dates: 4 March 2013 Decision date: 04 March 2013 Jurisdiction: Equity Division - Probate List Before: Bergin CJ in Eq Decision: Summons dismissed Catchwords: [PROBATE] - where Caveat lodged - where prima facie evidence of lack of capacity in testator Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Category: Interlocutory applications Parties: Zoe Seliametis (plaintiff) Marcos Kououyiannis (defendant) Representation: K Morrissey (plaintiff) JJT Loofs (defendant) Slattery Thompson (plaintiff) Russell Brynes (defendant) File Number(s): 2012/246942 Judgment - EX TEMPORE 1This is an application brought by way of Summons filed on 8 August 2012 by Zoe Seliametis, the plaintiff, seeking an order that the Caveat of the defendant, Marcos Kououyiannis, dated 17 July 2012 cease to be in force. The defendant is the nephew of the late Mrs Maria Nicolaou (the deceased) who died on 6 July 2012 aged 92 years. 2The plaintiff relies upon her affidavit of 2 August 2012. That is a formal affidavit to which the plaintiff annexes as annexure A the Will of the deceased of 17 January 2012; the Caveat lodged by the defendant; the Will of the deceased of 4 September 2003; an unsigned document entitled "Last Will and Testament" of the deceased with a date 9 December 2009; and the Will of the deceased of 2 February 2011. 3The defendant relies upon two affidavits, that of Georgia Martin sworn on 7 December 2012 and that of the defendant sworn on 7 December 2012. Ms Martin's affidavit sets out the history of her relationship with the deceased. 4The defendant's evidence is that the deceased was one of four children and at the time of her death, she was the sole surviving child. The defendant's mother had eight children and was the oldest sibling of the deceased. The defendant also gives evidence that his solicitor informed him that should the three known Wills of the deceased be invalid then he would be entitled to a one twenty-fourth share of the deceased's estate on intestacy. The defendant is the only relative of the deceased in Australia who would be entitled to a share of the estate of the deceased on an intestacy. The defendant claimed that all of the other potential beneficiaries of the deceased on an intestacy are in Europe and "are relying on me to defend these proceedings". Mr Morrissey, counsel for the plaintiff, has not objected to that evidence on the basis that this is an interlocutory application, of course reserving his position otherwise. 5The first Will of 4 September 2003 provides that after just debts and testamentary expenses, the deceased's estate was to go to St Basil's Homes to be used for the general purposes of that organisation. The second Will referred to by the plaintiff is the unsigned document dated 9 December 2009. I need not say much about it but for the purposes of this application Mr Morrissey has indicated that he was instructed that this was a Will executed by the deceased. He has some evidentiary difficulties in that regard. That document refers to a bequest to the Greek Orthodox Community of New South Wales Ltd Hostel For the Aged in Woolcott Street, Earlwood (the Facility). 6The 2011 Will provides for a sum of $100,000 to the plaintiff for her "kindness" to the deceased with reference to her assistance to the deceased with medical appointments and generally conveying the deceased from place to place. The balance of the estate goes to the Facility. The 2012 Will gifts "the Bond" to the plaintiff and the balance once again to the Facility. 7Mr Morrissey submits that first the defendant lacks standing to maintain the Caveat and, secondly, the documents to which I have referred are rational on their face and there is no basis upon which the Caveat should remain. He submitted that there is no evidence to support the claim made by the defendant that the deceased lacked capacity and, in particular, lacked capacity in respect of the 2003 Will. 8Mr Morrissey submitted that the defendant has no standing in respect of the 2011 and 2012 and 2003 Wills because he does not take under any of those Wills. However the defendant has approached this application on the basis that the Wills are challengeable and has called detailed evidence of Ms Martin to establish that fact, and his standing, he claims, is in respect of the position that would pertain once those Wills are challenged. 9The evidence of Ms Martin recounts a history from the time of the death of the deceased's husband in April 2002. Ms Martin had been invited by the deceased to live in her home with her then new husband in 1989. She clearly had a close relationship with the deceased. That relationship became much closer on the demise of Ms Martin's mother in 1996 and in particular after her divorce from her husband in 2006. 10After the deceased's husband died in 2002 Ms Martin noticed that on occasions the deceased became confused. This led to situations where the deceased would not believe that things had previously been discussed. Ms Martin also noted that the deceased was suffering what she describes in her lay observations as "severe depression". She observed the deceased's moods began to change more frequently and she became increasingly aggravated. 11The first occasion on which Ms Martin observed the deceased displaying what she described as "paranoia" (and I will read that as a lay observation) was in 2003. In 2003 the deceased phoned Ms Martin and said: "I have been robbed. Someone has broken in and stolen $5,000 from under the bed." Ms Martin and her husband then took the deceased to the Waverley police station that night. The police officer attended the deceased's home and subsequently informed Ms Martin that there was no evidence of any forced entry. The officer also reported that the deceased had provided conflicting accounts and that she appeared to be confused. The officer also advised Ms Martin that the police did not believe that there had been a robbery. When Ms Martin spoke with the deceased, the deceased then claimed that the police were involved. Ms Martin said that the deceased appeared to be "very confused". 12At this time in 2003 the deceased was living in the downstairs part of her house in Waverley. The deceased informed Ms Martin that she wanted to move out of the house and into a Greek retirement village with a nursing home. Ms Martin helped the deceased make enquiries in this regard and the deceased indicated a preference for St Basil's Home at Lakemba. 13Ms Martin visited that Facility with the deceased. The deceased was advised by the staff that a waiting list existed and she would be placed on it but that it would take between three to five years for the deceased to obtain a place because the deceased wanted to have two rooms. Shortly after the visit to St Basil's the deceased had a conversation with Ms Martin in which she said: "If I make a payment to them do you think I will have a better chance of getting in?" Ms Martin advised the deceased that she did not have to do that, that it was not about the money and she just had to wait for a vacancy. The deceased then said: "What if I tell them I will leave them something in my will," to which Ms Martin responded that the manager had informed them that they had to wait for a vacancy. 14In 2009 Ms Martin took the deceased to St Basil's once again after a number of previous visits. On this occasion the deceased informed the receptionist in Ms Martin's presence that the room was too small, that she could not fit her things in and she wanted two rooms like the one that was on offer. The Manager advised Ms Martin and the deceased that this was not possible as there were many people on the waiting list and it was one room to one person. The deceased then asked Ms Martin: "Tell them that I will leave them everything". Ms Martin advised the deceased that that would not make any difference as there was only one room on offer and that no-one could have two rooms. 15It was after this visit that Ms Martin took the deceased to the Facility where it appears the rooms were bigger. Ms Martin said that the deceased seemed to prefer the Facility. In late 2009, arrangements were made for the deceased to move in to the Facility. Although Ms Martin's understanding was that the deceased was to be assessed by an aged care assessment team, this apparently did not happen. Ms Martin maintained regular visits with the deceased. In December 2009 Ms Martin received a telephone call from a Mr Tom Tsoukalas, a friend of the deceased. Mr Tsoukalas informed Ms Martin that he had taken the deceased to see a solicitor and had stayed in the reception area whilst the deceased was with the solicitor. When the deceased emerged from the solicitor's office, she advised Mr Tsoukalas that it was her intention to bequeath all her estate and assets to the Facility. Mr Tsoukalas advised Ms Martin that Mr Danalis, the solicitor, said he could not sign the deceased's Will as it would be a conflict of interest because he was the President of the Greek Community and a member of the management committee of the Facility. Mr Tsoukalas was asked by Mr Danalis to take the deceased immediately to the office of another solicitor Mr Criticos, because Mr Danalis had arranged for him to complete the Will with the deceased. 16During the discussion with Mr Tsoukalas Ms Martin expressed her concern about the deceased's presentation of "not thinking properly for a long time". Mr Tsoukalas suggested that Ms Martin: "Do something about this", because he felt that the deceased did not know what she was doing. Ms Martin then decided to consult with some of the staff at the Facility and was advised that there did not seem to be an aged care assessment on the deceased's file. She was also advised that it did not appear that any prior medical record was available. 17In March 2010, Ms Martin was contacted by a police officer who advised her about an alleged theft of $77,000 from the deceased at the Facility. Ms Martin was subsequently advised by that police officer that the investigation was inconclusive and no further action would be taken. On the following day, when Ms Martin attended the Facility she was advised by one of the employees that they thought that the deceased was suffering from dementia and this had resulted in her thinking that she had a lot of money in her room. Ms Martin again asked about the assessment but was advised that no assessment had been carried out since the deceased had been admitted to the Facility. When Ms Martin visited the deceased on that occasion the deceased advised her that: "They only stole $77,000 cash and left a slightly lesser amount here." The deceased said she did not understand why they did not bother taking all the cash and that she was going to take the rest of her money "back home for safe keeping." On a subsequent visit, the deceased advised Ms Martin that she had decided to bring the money back to the Facility and had wrapped it in newspaper so that no-one would know where it was hidden. Ms Martin also gave evidence of the deceased's confusion about whether she had various appointments for eye specialist treatment. 18In December 2010 the deceased claimed there was another alleged theft at the Facility. When Ms Martin spoke with the deceased she advised her that at least another $30,000 had been stolen and that the police had taken her jacket away to see if they could solve the alleged crime. It was in mid-December that Ms Martin spoke to the deceased's doctor about whether the plaintiff had been assessed and how she was being treated, in particular, in relation to her dementia that she felt was getting worse. Ms Martin complained that she felt that nothing seemed to be happening. The medical practitioner indicated that as far as he was aware the deceased refused to take her medication and that he was only prescribing blood pressure tablets and did not have any previous medical history on the deceased. Ms Martin then asked the medical practitioner to visit the deceased. He said that he would do so and that he would provide any necessary reference for a geriatrician to assess the deceased. 19In late December 2010 one of the employees of the Facility advised Ms Martin that a Residential Care Plan had been prepared by the Facility. That document includes a diagnosis of "dementia with Alzheimers profound" in July 2010. 20It was in 2011 that Ms Martin first became aware of the plaintiff. The deceased informed Ms Martin that the plaintiff had taken her to see a solicitor and that she was going to give the plaintiff "Whatever money I have paid to get in here". At that time, Ms Martin had not met the plaintiff and although she had spoken to her on the telephone she was unsure who she was. On 18 August 2011, Ms Martin went to the Facility to collect the deceased to take her to a funeral of a family friend. The conversation with the deceased at the Cemetery indicates what might be described neutrally as further confusion. 21In August 2011 Ms Martin received a telephone call from the Canterbury Hospital in which she was advised that the deceased had been admitted because she was having breathing difficulties and had heaviness in the chest. Ms Martin telephoned the Facility to find out why she had not been contacted and informed of the deceased's illness. She was advised that her name was no longer listed as the deceased's next of kin and that the plaintiff's name had been inserted as the deceased's designated next of kin. Ms Martin was also advised that her name had been "crossed out". When Ms Martin and members of her family visited the deceased in the Canterbury Hospital the following day the plaintiff was present and left shortly after their arrival. 22Ms Martin also gives evidence in relation to a encounter with Mr Danalis and an unsatisfactory conversation in respect of his preparation of the will that I have referred to earlier. Ms Martin was subsequently approached by a Manager of the Facility who advised her that she had been in the deceased's room helping her to sort out papers and found her Certificate of Title to her property. The Manager advised Ms Martin that she had placed the Certificate of Title in her office in the safe until it was transferred into the safe of the deceased's solicitor. Ms Martin advised the Manager that she was happy for it to remain in the safe custody in the office of the Facility. 23There was a further conversation in November 2011 with another Manager of the Facility in which Ms Martin said that she wished to find out why she was not contacted when the deceased was admitted to Canterbury Hospital. The Manager advised that it was not possible to indicate why that occurred. The documents that were on file clearly indicated that Ms Martin was the next of kin and the Manager was not certain why the plaintiff had been inserted in her place as the next of kin. The Manager said it was very strange and that it was of concern to her. Ms Martin said: "At least her Certificate of Title is in safe custody". The Manager then advised Ms Martin that she no longer held it but Mr Danalis had taken it. 24In December 2011 Ms Martin had a conversation with the plaintiff in which she asked her whether she knew that the deceased was not well and was confused. Ms Martin also said to the plaintiff: "What are you up to?" Ms Martin's evidence was that the plaintiff walked away at this time. Ms Martin then attempted to take the deceased out of the Facility and it appears some unsatisfactory events occurred and she was unable to take her out of the Facility at that time. There was what could only be described as an unsatisfactory confrontation that involved the deceased at this time. 25Ms Martin became so concerned about these events that she lodged a complaint with the Aged Care Complaints Scheme which took some time to resolve. The report of the officer of the Scheme is annexed to Ms Martin's affidavit. It is not necessary to detail the contents of that report but to note that there were conflicting issues that obviously needed resolution. 26In January 2012, the deceased telephoned Ms Martin and informed her that she had been speaking with the management who had advised her that Ms Martin was causing trouble. The conversation as recounted by Ms Martin evidenced some more confusion with reference to the deceased's physical discomfort. The deceased then informed Ms Martin that the plaintiff had come to her room. Ms Martin then had a conversation with the plaintiff on the telephone asking why the deceased was so upset. The plaintiff informed Ms Martin that she did not know anything about it. 27On 22 January 2012 Ms Martin visited the deceased with another person, Mr Kefalis. The deceased was then asked about a document (written in English) that she had apparently signed on 19 January 2012 requesting the Facility to remove Ms Martin as her next of kin. The deceased claimed that she thought she was signing something that related to her increase in fees. The deceased claimed that she wanted to get out of the Facility; that she was sick of what was happening; and that "they" just wanted her money. 28It appears that Ms Martin once again complained to the Aged Care Complaints Scheme in respect of the occurrences at the Facility. 29It was on 5 July 2012 that Ms Martin received a call from Canterbury Hospital advising her that the deceased had been admitted that evening. The deceased passed away the following morning. The defendant lodged a general caveat on 17 July 2012. 30Mr Loofs, who appears for the defendant, has submitted that the cumulative circumstances that create a significant doubt as to the deceased's capacity in respect of the 2011 and 2012 Wills include: (1) the change of the deceased's behaviour after the demise of her husband; (2) the observations from about 2002/2003 in relation to the deceased's memory and the decline in her short-term memory (by reference to the recent conversations she could not recall); (3) the deceased's irrational fear first stated in 2002 that money deposited in banks would not be returned to her; (4) the deceased's expression of belief that she had been robbed; (5) the making of the 2003 will leaving her estate to St Basil's homes; (6) visiting St Basil's home in 2009 and deciding not to go forward with accommodation in that facility; (7) the change in the deceased's behaviour after admission to the Facility; (8) the irrational belief that if she left her estate to the Facility she would be looked after properly; (9) the record of her worsening dementia and lack of insight; (10) and the assertion of the deceased to police on a number of occasions that she had been robbed. 31Mr Loofs also referred to the statement by the deceased that she wanted to leave her Bond or the money that she had invested in the Facility to the plaintiff to ensure that she was properly looked after. Mr Loofs also relied upon the conversation at the Cemetery and what he described as the deceased's susceptibility to influence by the plaintiff and Mr Danalis. He submitted generally that the evidence pointed to the genuine question as to the deceased's capacity. In particular, he pointed to what he referred to as the irrational belief by the deceased that leaving her estate to her carers would result in a benefit to her. In this regard, he submitted that this was simply not the case and care was required to be given once the financial obligations of the deceased to the facility had been met. It was submitted that these facts fall within the fourth limb of Banks v Goodfellow (1870) LR 5 QB 549 at 565), namely that "no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." Mr Loofs submitted that this irrational belief continued from 2003 until the later wills in which the deceased bequeathed her estate to either her carer and/or the Facility in which then she was then resident. 32It was submitted that there is a prima facie case established on the evidence that at the time of making the 2011 and 2012 Wills, the deceased was not able to understand the claims to which she ought give effect. It was also submitted that there was sufficient evidence of cognitive impairment in which a diagnosis had been made at least in July 2010, coupled with the deceased's failing cognition, to warrant a reversal of the onus. It was also submitted that a prima facie case been established to show that there is a case of undue influence. 33It is inexplicable that the Facility would remove Ms Martin as the notified next of kin and then for there to be a gift of $100,000 to an employee of the Facility in which the deceased was accommodated. I am satisfied that there is a prima facie case and a serious issue to be tried in that respect and I am satisfied on the evidence that the circumstances of the 2012 and 2011 Wills were such that the onus is on the plaintiff to establish capacity. I am conscious that Mr Morrissey has submitted that even if those two wills were not found to be validly made or were the subject of undue influence, the evidence does not establish that the deceased was affected in that way in 2003. 34On balance I am satisfied that the evidence of Ms Martin in relation to her conversations with and observations of the deceased after the deceased's husband's demise establish that there was, at least to Ms Martin's observations, confusion in the deceased at that time. There is a serious issue to be tried in respect of what has been described as the irrational belief of the deceased, which she maintained at least from 2003 to 2011, that if she left her estate to the people who owned either St Basil's or the Facility she may receive better care notwithstanding that she had paid a very large amount of money for admission into the Facility. In those circumstances Mr Morrissey's complaint about standing does not have force. It is the case that, if those Wills do not survive, then the defendant does have an interest in respect of the grant of probate in respect of any of the Wills. 35In all the circumstances I refuse the relief sought in the Summons. ********** 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: 06 March 2013