Supreme Court New South Wales Medium Neutral Citation: Barakett v Barakett [2016] NSWSC 1257 Hearing dates: 7, 8 and 9 October 2015 Decision date: 13 September 2016 Jurisdiction: Equity Before: White J Decision: Refer to para [77] of judgment. Catchwords: SUCCESSION — Probate — Grant of probate — Testamentary capacity – Knowledge and approval – No issue of principle — Probate granted in solemn form of the latter will; SUCCESSION — Family provision — Application for family provision order under Pt 3.2 of the Succession Act 2006 (NSW) — Applicant provided with right to reside in house and one-third of the estate under the terms of the will —Applicant's provision adequate for applicant's proper maintenance and advancement in life — Claim for provision dismissed – No issue of principle Legislation Cited: Protected Estates Act 1983 (NSW) Succession Act 2006 (NSW) Cases Cited: Crisp v Burns Philp Trustee Co Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979, unreported) Gray v Hart; Re Estate of Harris (No. 2) [2012] NSWSC 1562 Texts Cited: Handler & Mason, Succession Law and Practice NSW [9433] Category: Principal judgment Parties: Elias Barakett (Plaintiff) Anthony Barakett (Defendant) Representation: Counsel: G Smith (Plaintiff) G George with J Bennett Solicitors: Wilsons Solicitors, Attorneys & Conveyancers (Plaintiff) Reimer Winter Williamson Lawyers (Defendant) File Number(s): 2014/200179 Judgment 1. HIS HONOUR: These proceedings concern the estate of Adele Barakett who died on 25 May 2013 aged 98. She was survived by her three sons, Elias (known as Lou), Barakett (known as Barry), and Anthony (known as Tony). Mrs Barakett was born in Lebanon. She emigrated to Australia in 1952. Her husband had emigrated some months earlier, but he died only nine months after Mrs Barakett and her sons arrived in this country. At that time Mrs Barakett was aged 37. Lou was eight years old, Tony was six and Barry was 4. When Mrs Barakett died in 2013 she left an estate comprising a house and land in Cobb Avenue, Jamisontown, a suburb south of Penrith, and term deposits and other moneys totalling approximately $207,000. 2. Mrs Barakett made a will on 4 October 1974. By that will she appointed her oldest son Lou as her executor and she left her estate to her three sons in equal shares. 3. On 7 July 2014 Lou Barakett filed a statement of claim seeking a grant of probate in solemn form of the will of 4 October 1974. There was no challenge to the validity of that will, but there was also no evidence of its due execution. Nor was there evidence that the attesting witnesses had died or were otherwise unavailable. It was common ground that probate in common form should be granted of that will unless Mrs Barakett had made a later valid will. 4. Tony Barakett propounded as his mother's last will a will made on 13 February 2013, that is, a little over three months before her death. That will was prepared by a solicitor, a Mr Ronald Aurelius, of Bell Lawyers, Penrith after taking instructions from Mrs Barakett through an interpreter. That will also appointed Lou Barakett as executor. Clause 3 provided: "3. (a) I GIVE to the Trustee my principal place of residence at the date of my death (called 'the house') and the furniture and furnishings (call 'the contents') contained herein upon trust to permit my son ANTHONY BARAKETT ('Tony') to live in the house and have use of the contents as long as he wishes ('the right of residence'), provided that he: pays all rates and taxes and other outgoings; pays all premiums for insurance policies effected by the Trustee, having regard to their condition at the date of my death. keeps the house and contents in repair to the satisfaction of the Trustee, having regard to their condition at the date of my death. (b) the house and contents shall not be sold without the written consent of Tony until the right of residence terminates, which shall occur if in the opinion of the Trustee Tony has: ceased to live in the house permanently; died; or failed to comply with the conditions of the right of residence contained in paragraph (a). (c) upon the termination of the right of residence, I DIRECT that my right, title, interest and share in the house and contents shall form part of the rest and residue of my estate." 1. Clause 4 provided for the rest of the estate to be divided and distributed between the three sons in equal shares with a gift over to the children of any son who did not survive the deceased of that son's share. 2. Tony Barakett propounds the 2013 will. Lou Barakett denies that the deceased had testamentary capacity. He contends that there were suspicious circumstances attending the creation of the 2013 will and that the deceased did not know and approve of its contents. 3. Tony Barakett also seeks a family provision order. He contends in addition to the right to reside in the house in Cobb Avenue, Jamisontown and to one-third of the residuary estate as provided for in the 2013 will, adequate provision for his proper maintenance and advancement in life also requires a further substantial pecuniary legacy and a Crisp order (Crisp v Burns Philp Trustee Co Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979, unreported); Handler & Mason, Succession Law and Practice NSW [9433], p 13,580): that is, an order that in substance would provide him with alternative accommodation at the cost of the estate if he had to vacate, or chose to vacate, the Jamisontown property. Validity of the 2013 will 1. Mrs Barakett was 98 when she made her will. She lived at home. Tony Barakett was her carer. He was assisted by carers employed by Homecare Services of NSW who attended the house for about 45 minutes per day and provided respite care on Saturdays. 2. Mrs Barakett suffered from arthritis affecting her knees that limited her ability to stand. She was mostly bed-bound. 3. Tony had been his mother's carer for many years. In October 2008 Barry Barakett applied to the Guardianship Tribunal for a guardianship order and a financial management order in respect of Mrs Barakett's estate. On 10 November 2008 Mrs Barakett's general practitioner, Dr Khan, wrote a letter that was subsequently submitted to the Guardianship Tribunal. The letter was addressed to a social worker at ACAT. Dr Khan stated that: "I have seen the above patient who is bedridden at home. She has dementia, weakness of legs, unsteadiness on standing. She is unable to dress. Needs assistance in eating and going to toilet, bathing and is occasionally incontinent in urine and faeces. … She has a swelling in her right knee due to arthritis. She stays home with her son who is faithful but not very bright intellectually. He is alone with her and is afraid to go shopping etc." 1. Dr Khan referred Mrs Barakett for an assessment by a geriatrician. A Dr Oliver Leung provided a report on 26 November 2008. He reported, amongst other things: "I reviewed Adele Barakett at her place in the presence of ACAT social worker Johnny Or and her 3 sons including Tony her normal carer and Barry the guardianship applicant. Adele is a 93 year old lady who stayed with Tony. She unfortunately had increasing arthritis affecting her knees and as a result limiting her weight bearing and mobility. At the moment she is mostly bedbound with functional incontinence soiling her bed sheets on a frequent basis. The incontinence problem was the reason Barry got ACAT involved and subsequent Guardianship application. Tony, despite trying his best, is unfortunately not the sharpest tool in the shed and has declined previous care plan suggested by his brothers for Adele. Even though malicious intent was not suspected, the report of soiling of bedsheets was confirmed during the interview and Adele's clothing was dirty as well. Despite all these happening Adele seem[s] to have apathy towards the surrounds. Using broken English she claimed she would want to stay in bed all the time, not wanting to go to hospital or seeing doctors. An assessment of her cognitive status was attempted with the aide of an independent Lebanese interpreter but the difficult[y] was compounded by her hearing and poor eyesight. The routine screening tool was not completed but my impression is that Adele has possibly early symptoms of cognitive impairment, based on the facts that she seemed to have 'selective hearing' and [chose] not to answer when she apparently did not know the answer. Other symptoms include her lack of insight and apathy to her activities of daily living, which may suggest some form of frontal lobe (executive decision making) involvement. The primary reason of my support for guardianship application actually lies with the ability of informed decision making of Tony, who is Adele's carer on a regular basis. His discount of her hygiene and futile justifications of his doings does worry me. One example would be Tony going for fishing for almost 6 hours and during the time Adele would be home alone on her bed with no immediately accessible carer. Mechanism should be in place to safeguard Adele from an inadvertent neglect." 1. On 24 December 2008 the Guardianship Tribunal appointed Barry as Mrs Barakett's guardian. It ordered that her estate be subject to management under the provisions of the Protected Estates Act 1983 (NSW) and appointed Barry manager of her estate. 2. Barry engaged the services of Homecare to visit Mrs Barakett each day to provide her with personal care. Tony remained her main carer. The carers from Homecare were there for about 45 minutes a day and for four hours on Saturday to provide respite for Tony. 3. Lou Barakett gave evidence that his mother spoke a very particular dialect of Lebanese Arabic, being a dialect that he spoke, but which was not readily comprehended by others when he spoke it on a visit to Lebanon in 1999. The effect of his evidence was that the Arabic that Mrs Barakett spoke would not be readily comprehensible to another Arabic speaker. He described her language as a very shortened version of Arabic, that it was simple Arabic with small amounts of very broken English in between. He deposed that Mrs Barakett's hearing was impaired and that by about 2008 anyone talking to her had to speak very loudly and very slowly in order to communicate. He said that by February 2013 Mrs Barakett was profoundly deaf and a person trying to communicate with her would almost have to scream. He said that from about 2011 or 2012 a person wishing to talk to her would have to virtually talk into her ear. 4. I do not accept that evidence concerning Mrs Barakett's ability to hear. That evidence was not corroborated by the carers who saw her. Ms Patricia Campbell, one of the carers, said that she never felt she had to raise her voice when speaking to Mrs Barakett and they spoke normally, although Mrs Barakett had very limited English and conversations were limited to the simplest exchanges about the simplest of matters. 5. Tony Barakett deposed that from 2011 he said to his mother that he was concerned about what he would do if anything happened to her. She said "Tony don't worry. You will be living here." In about late 2012 when again speaking to his mother about this topic Tony said to her words to the effect "Mum I am uncertain about what is going to happen if anything happens to you, because I don't know what my brothers are going to do". She said words to the effect "Don't worry, you will live here. Your brothers won't do anything, but to make sure you'd better go and get some help." He said that he spoke to each of his brothers, both of whom said to him words to the effect that he could continue to live in the house provided he paid the bills, but if he did not then the house would be sold. I accept this evidence. 6. Tony Barakett talked to a Mr Braid. He was a neighbour and friend of both Tony and Mrs Barakett. He suggested that Tony see a solicitor. 7. The solicitor who prepared the will was Mr Ronald Aurelius of Bell Lawyers. The initial instructions to Bell Lawyers were conveyed to Mr Aurelius' personal assistant, a Ms Michelle Phillips, by Mr Braid on 7 January 2013. At the time of the hearing Mr Braid was unfit to give evidence. He was not able to be cross-examined. Ms Phillips' file note of her telephone conversation with Mr Braid stated: "Calling for Tony – Mum – new will? (Has old one – more for Tony as carer)? R of R Can't read or speak English – interpreter Will need dollars in trust … Tony will pay ? – OK … Mum old and forgetful Get Dr's cert capacity to give legal inst's Can Dr come to house? Need before appt … Language/dialect? Lebanese?" 1. Bell Lawyers had been acting for Tony Barakett in the latter part of 2012. They corresponded with the Guardianship Tribunal and the NSW Trustee and Guardian in relation to the management of Mrs Barakett's assets by Barry. 2. Tony was with Mr Braid when he spoke to Ms Phillips. He said the reason that he needed Mr Braid's assistance was that he was not very good at talking, spelling or reading. After Mr Braid had finished talking to Ms Phillips he wrote out a note for Tony to give to the doctor. Tony could not read the note. He took it to Dr Khan. Tony gave evidence that his mother had seen Dr Khan for over 20 years, but once she became bedridden Dr Khan would come to see her to give her a flu injection. He would go to Dr Khan's surgery to get eye drops and tablets and anything else that was required. When Tony Barakett took the note that John Braid had written for him to Dr Khan he waited in the surgery. Dr Khan gave him a letter that he took away. The letter from Dr Khan was dated 16 January 2013. It was addressed "To whom it may concern". Referring to Mrs Barakett it said: "The above lady has been my patient since 4/7/1994. As far as I know her son, Anthony, has been looking after her long before that. Adele is able to understand if explained clearly and slowly. There has been no perceptible difference in her mental state since then (1994). Clearly, she has a full mental capacity to enable her to give a full legal instructions [sic] about her intensions [sic]. However she tends to be forgetful. She recognises me immediately and speaks to me. She wants to do a rational decision about the house and provide for the future of her son who is looking after her. Thank you" 1. Dr Khan made an affidavit that was read, but he also was medically unfit to give evidence. His affidavit was admitted notwithstanding that he could not be cross-examined, but in the circumstances his affidavit can carry little weight. He deposed that he last saw Mrs Barakett on 1 June 2012, that is, seven months before he gave his certificate. He deposed that during that conversation Mrs Barakett told him that she was worried about what would happen to Anthony when he died and she wanted Anthony to stay in the house because he was unable to work because of his back. He said that she had often spoken to him of her concerns about what would happen to Tony after she died. 2. Dr Khan also gave opinion evidence which, if objected to, would have been rejected, that Mrs Barakett answered questions rationally and understood what she was saying and in his opinion was not suffering from any condition that affected her mental capacity. He did not depose to any facts that provided the basis for that opinion. In October 2008 Dr Khan had stated that Mrs Barakett had dementia. Depending upon its degree that is not necessarily inconsistent with her then or later having testamentary capacity, but is a matter that a doctor would need to address. I give no weight to Dr Khan's opinion as to Mrs Barraket's testamentary capacity. 3. Tony Barakett deposed that before Mr Aurelius visited the house he and Mr Braid saw Mr Aurelius who suggested that he take some instructions from his mother in relation to preparing a will. Mr Aurelius did not recall ever having that conversation and was sure that he had not met Tony before he went to the house. I prefer Mr Aurelius' evidence. Before Mr Aurelius went to the house he read the file, including Michelle Phillips' initial file note, and he read Dr Khan's report. He saw that an interpreter had been organised. 4. On 22 January 2013 Tony Barakett paid Bell Lawyers $123 in cash on account of its costs. 5. Bell Lawyers retained the services of T & T Interpreting services that described themselves as "NAATI Accredited Interpreters and Translators". They provided the services of an "Arabic (Lebanese) interpreter", a Ms Josephine Elias. She deposed that she was an accredited interpreter in Arabic and English. 6. On 31 January 2013 Mr Aurelius and Ms Elias attended on the deceased. 7. Mr Aurelius made a file note of his attendance with the interpreter at Mrs Barakett's house on 31 January 2013. Relevantly, his file note provides as follows: "Tony introduced us to Mum in her bedroom. Then I asked Tony to leave room – to allow Mum to relax – Tony stood down hall still in Mum's sight. Used interpreter to ask the following: Do you want to make a new will – yes. Do you know what a will is – and explained and she said yes Has this house and money – Wants to leave everything between her three sons – Tony to stay in house How long? Until he wants – asked if he was to pay rates, insurance and look after property? Through interpreter – answer yes Names of children – Anthony, Elias and Barakettt (Barry) What if one son died before her? Son's children to get share Through interpreter – or grandchildren over 18 Who is to be executor? - Elias just like last will. Interpreter says she understands my questions wants a will the way she has answered the questions." 1. Mr Aurelius made his file note contemporaneously. His questions were translated by Ms Elias to the deceased and the answers he recorded were the answers provided by the interpreter. He could not understand what the interpreter was saying to Mrs Barakett, nor her answers to Ms Elias. A couple of times Mrs Barakett spoke in broken English. 2. Mr Aurelius deposed that a conversation took place as follows: "I said: 'Do you want to make a new will?' to which Adele responded with the word 'Yes'. I said: 'Do you understand what a Will is?' to which Adele said 'Yes' I said: 'A Will is a document where you set out who you want to inherit your assets and who you want to be the person who manages your estate after you die and makes all the legal decisions required to follow what your Will says. This person is called 'the executor'.' Adele replied: 'I understand'. I said: 'Do you know what assets you own?' Adele replied: 'I own this house and I have money in the bank.' I said: 'Who do you wish to leave your house and money to?' Adele replied: 'To my three boys but Tony is to stay in the house'. At this point, Adele spoke English by saying on two or three occasions: 'Tony stay in the house'. I said: 'How long is Tony to stay in the house?' Adele replied: 'Until he wants' I said: 'Is Tony to stay in the house for free or is he to look after the house, pay the rates and pay insurance on the house?' Adele replied: 'If Tony wants to stay he is to pay all the rates and insurance. He is to look after the house'. I said: 'If Tony moves out or doesn't want to live in the house does the house then go to all three of your sons equally?' Adele replied: 'Yes'. I said: 'What are the names of your three sons?' Adele replied: 'Tony, Elias and Barakett'. I said: 'If any of your sons die before you do you want the children of your deceased son to inherit the share of your estate?' Adele replied: 'Yes'. I said: 'Are any of your grandchildren under eighteen?' Adele replied: 'No they are all over eighteen.' I said: 'I explained to you what an executor was. Who do you wish to be the executor?' Adele replied: 'Elias, just like the old Will.' Josephine then said to me: 'She wants the Will as she has answered the questions'." I accept this evidence. 1. Ms Elias deposed that she visited the property on 31 January 2013 where Tony Barakett introduced himself, Mrs Barakett and Mr Aurelius. She translated Mr Aurelius' questions to Mrs Barakett and her responses. She said that Mr Aurelius asked Mrs Barakett if she wanted to make a new will and she said she did. He asked her if she understood what a will was and she said yes. He asked her, "What do you want your will to say?", and she said words to the effect "I want my home and money divided equally between my three sons, but I want Tony to stay in the house". Mr Aurelius asked her the names of her sons and she gave them, and he then asked "How long do you want Tony to stay in the house?" Mrs Barakett replied "Until he wants". In response to Mr Aurelius, Mrs Barakett said that she wanted Elias (Lou) to act as executor. 2. Based on the instructions he received Mr Aurelius drafted the will for Mrs Barakett that she executed with a mark on 13 February 2013. He deposed that he handed the draft will to Ms Elias, who he understood read the will in Arabic to Mrs Barakett. At the conclusion of that reading of the will Ms Elias said to Mr Aurelius "She understands and the will is correct". Mrs Barakett signed the will with an "X" and her mark was witnessed by Ms Elias and him. 3. In her affidavit Ms Elias gave evidence to the same effect. She deposed that when she attended on the second occasion, that is on 13 February 2013, Mr Aurelius had drafted a will and said: "I've prepared your last will and testament as per your instructions, we will now go through the document and please let me know if you require any changes." 1. She deposed that "I then went through and translated the contents of the will in Arabic to Adele". Once the will had been read Mr Aurelius asked if Mrs Barakett was happy with its contents. She said she was and the will was executed and Mrs Barakett's signature was witnessed by Mr Aurelius and Mr Elias. 2. I accept Mr Aurelius' evidence. He relied on Ms Elias. The more difficult question is whether I should accept Ms Elias' evidence. She said that she held a level 2 qualification as an interpreter through the National Accreditation Authority for Translators and Interpreters ("NAATI"). Contrary to her assertion that this was a sufficient qualification, the evidence was that level 3 was the first professional level and represented a minimum level of competence for professional interpreting. Level 2 accreditation was accreditation for a "para professional interpreter" that represented a level of competence in interpreting and translation for the purpose of general conversations only. Ms Elias did not hold accreditation as a translator, as distinct from an interpreter. As noted above, in her affidavit Ms Elias deposed to having translated the will prepared by Mr Aurelius to Mrs Barakett on her second visit. This was also Mr Aurelius' evidence. 3. However, in oral evidence Ms Elias said that on the second visit Mr Aurelius read out the will and she interpreted what he read out. Questioning revealed that this was the first will Ms Elias had translated for a client. The will starts with the words "This is the last will and testament of me Adele Barakett …". She was asked what she understood "testament" to mean. Her answer indicated that she understood it to be "testimony", that is "like you know when you say the truth or you say something like 'no' and say it truthfully". 4. Ms Elias said that the evidence she had given in her affidavit of what Mrs Barakett had said was based on a note she had made. She said that her note had been destroyed two or three months before she gave evidence (that is, two to three months before the hearing). She said that she thought the matter had been settled. 5. In some ways Ms Elias was an unsatisfactory witness. She changed her evidence from that which had been given in her affidavit to the effect that she read out the will that Mr Aurelius had prepared in Arabic to Mrs Barakett, and instead said that she interpreted Mr Aurelius' reading out the will in English. I think she changed her evidence in this respect because she was conscious that her NAATI accreditation was as an interpreter and not a translator. It is surprising and disturbing that, according to her, she destroyed the notes from which she had prepared her affidavit and apparently did not disclose their existence to the solicitor when the affidavit was prepared. I bear in mind that her level of qualification is below the minimum level of competence for professional interpreting and represents a level of competence in interpreting for the purpose of general conversations only. 6. Despite these reservations, I accept that on the first visit Mrs Barakett, through Ms Elias, told Mr Aurelius that she owned the house and had money in the bank and that she wanted to leave everything between her three sons, but that Tony was to stay in the house for as long as he wanted, but was to pay rates, insurance and look after the property. Not all of this was included in Ms Elias' affidavit, but it is recorded in Mr Aurelius' file note of his attendance on 31 January 2013. 7. It was not, and could not have been, contended that Ms Elias did not translate Mr Aurelius' questions to Mrs Barakett and that Mrs Barakett did not give the responses that Ms Elias then conveyed to Mr Aurelius. There was no suggestion that Ms Elias had had prior dealings with Tony Barakett or with the firm of Bell Lawyers and had been primed to convey responses that were not Mrs Barakett's responses. It could not properly be concluded that she did not obtain the information she conveyed to Mr Aurelius from what Mrs Barakett said to her. 8. It follows that Mrs Barakett must have understood Ms Elias' Arabic, even though according to Lou Barakett, Mrs Barakett spoke in her own version of Arabic such that, when he spoke the version he learned from his mother he could not be understood by most other people. A Ms Therese Epselis, who spoke Egyptian Arabic and whose parents spoke a Syrian version of Arabic, was able to understand Mrs Barakett's Arabic, which she described as basic or simple Arabic. I conclude that Mrs Barakett's Arabic was sufficient to understand Ms Elias and to convey instructions to Ms Elias in the terms noted above. 9. The making of a will in those terms was consistent with a rational assessment of Tony Barakett's needs. He had lived with his mother at the Cobb Street property from the time she purchased it in about 1987. He had been his mother's carer and on a carer's pension from about 1994 or 1995. Prior to 1994 Tony Barakett had had only intermittent employment. All three sons had grown up in a boys' home, first at Baulkham Hills and then at Westmead whilst their mother worked. Tony left the boys' home before he was 15 and obtained work in a panel beating and spray painting business. He lived with his mother in rented housing commission accommodation. His mother purchased a property at Campsie with her brother and the family moved to the Campsie home. By 1971 both Lou and Barry had moved out of the Campsie house leaving Tony and his mother there. In 1973 or 1974 Tony was gaoled for receiving stolen property. After his release he returned to his mother in the Campsie house. He had intermittent employment as a labourer or machinist or as a spray painter, but was injured in about 1994 and never returned to work on a full time basis. He is illiterate and by far the least capable of the three brothers. Mrs Barakett told Lou, speaking of Tony, that "You've got to look after him. He is different to you two. You've go to look after him". 10. The plaintiff submitted that in February 2013 Mrs Barakett did not have the capacity to understand the nature of a will, to appreciate the extent of her property to be disposed of, and to evaluate the competing claims on her testamentary bounty. She had made a will in 1974. In the mid-1980s she told Lou that "Tony is at me to change the will". But she said that the will would not be changed and no son would get a cent more than any other. 11. Lou Barakett deposed that his mother's eyesight started to diminish in 2009 or 2010 and that by February 2013 she would not know who was in the room because her eyesight was so poor. He deposed that she also did not recognise any voices and would answer questions or respond to statements simply by saying "Thank you". She often looked away or looked down with a blank stare. He deposed that by about 2008 his mother had lost the best part of her hearing and one had to speak very loudly and slowly if communicating with her. He said that by 2013 she was profoundly deaf and one would have to almost scream at her. This last evidence as to Mrs Barakett's hearing is not corroborated. Indeed, it is contradicted by the evidence of the carers from Homecare. I do not accept it. 12. Lou Barakett deposed that by late 2012 Mrs Barakett did not recognise his second wife, Nancy, with whom, until then, she had got along with very well. Nancy and Lou Barakett married in 2006. She could only speak simple English and did not speak Arabic. She said that in the year or a little more before Mrs Barakett died Mrs Barakett did not know who she was. She said that she would sit with Mrs Barakett, hold her hand and ask her how she was, but Mrs Barakett would sit up in bed and stare ahead. Mrs Barakett did not speak to Nancy. 13. I do not place any weight on this evidence. Nancy Barakett did not have the language to communicate with Mrs Barakett. In cross-examination Nancy Barakett was asked about one topic, namely whether in 2013 up to Mrs Barakett's death, she only saw Mrs Barakett once. Initially she agreed with that. Later she said that roughly she saw Mrs Barakett once every month or sometimes less, and then she saw her maybe once, maybe less or maybe more. I do not know how often Nancy Barakett saw her mother-in-law. It may well be that Mrs Barakett did not give an indication of knowing who she was, but Nancy Barakett did not give evidence as to how often she had visited her mother-in-law or of any particular interaction with Mrs Barakett other than sometimes visiting her at which time they would touch hands and say hello. 14. Other witnesses gave evidence that it was impossible to have any conversation with Mrs Barakett other than on the simplest of matters. Language difficulties played their part. Thus, even Mrs Barakett's son Barry found it difficult to have a meaningful conversation with his mother other than by each of them using very short phrases combining both Lebanese Arabic and English. This was because when the family emigrated to Australia in 1952 and the boys then aged 8, 6 and 4, were placed at St. Michael's Boys' Home at Baulkham Hills. Then, as each of them turned 10, he was transferred to the St. Vincent's Boys Home at Westmead. They were visited by their mother as often as was possible. But the result was that until the boys turned 15 or thereabouts they lived in a boys' home at either Baulkham Hills or Westmead rather than with their mother. There was a general understanding between the three boys that their mother was doing her best in difficult circumstances and boarding school was the best place for them. The result also was that although Mrs Barakett was able to incorporate some English words into her conversation, Barry, who was the youngest, found it difficult to have a meaningful conversation with his mother. Each of them used very short phrases combining English and Lebanese Arabic. 15. In about 2003 or 2004 Mrs Barakett told her sons that she had made a will that was locked up in the Commonwealth Bank at Penrith and that Lou was the executor. She told them that she had left everything to the three of them and that the three brothers were to take care of each other. She never discussed changing her 1974 will with either Lou or Barry. 16. Lou Barakett tendered a video taken on 23 March 2013 to demonstrate Mrs Barakett's inability to respond or have any meaningful communication, even with her close family. He had recently purchased his first smartphone. In the video Mrs Barakett is smiling, but does not respond to attempts to encourage her to laugh. One might expect a competent willmaker to have responded in some way. However, the video is too short to draw any meaningful conclusion from it. It did not appear that Lou Barakett had attempted to start any conversation with his mother before the video was taken. He said this was because on previous occasions he could not communicate with her (T59). 17. Tony Barakett said that the video did not accurately depict Mrs Barakett's mental capacity. He deposed that his mother was not responsive when Lou and Nancy Barakett came to visit and if she did talk, it would be in Arabic. He said that when Lou and Barry came, their visits would often be short and they would not speak to their mother very much and would often speak in English. Tony Barakett deposed his mother had no difficulty in communicating her wishes to him and to others although she was selective as to whom she would wish to communicate with. She lived a solitary religious life after she became bedridden. I accept this evidence. 18. I do not consider that either the video evidence or the evidence of the plaintiff's witnesses to the effect that they could not have any but the simplest conversation with Mrs Barakett can displace the effect of the evidence of Mr Aurelius and Ms Elias (notwithstanding my reservations about Ms Elias' evidence) that on Mr Aurelius' attendance on 31 January 2013 Mrs Barakett was able to give cogent instructions that she wanted her property divided between her three sons, subject to Tony's being able to live in her house for as long as he wanted if he paid rates and insurance and maintained the property. 19. Either the evidence of Mr Aurelius and Ms Elias was fabricated, or Ms Elias' evidence was fabricated and she deceived Mr Aurelius, or, Mrs Barakett had a greater testamentary capacity than would be inferred from Lou Barakett's evidence, the short video, and evidence of some of the other lay witnesses. 20. I accept Mr Aurelius' evidence. Although I have reservations about Ms Elias' evidence, in particular her oral evidence in relation to the translation of the will on her second visit, these reservations do not extend to the substance of her recollection of what happened on the first visit. 21. There was no medical evidence on the question of Mrs Barakett's testamentary capacity. A week before the hearing the plaintiff served the report of a clinical neuropsychologist and clinical psychologist, Dr Wayne Reid. No leave had been obtained for the service of expert evidence. I rejected the report on the ground of its late service. As noted above the defendant had served the affidavit of Dr Khan, but the opinion expressed in his affidavit as to Mrs Barakett's testamentary capacity is of no weight. 22. The Guardianship Tribunal's finding in 2008 that Mrs Barakett lacked capacity to manage her financial affairs does not mean that she lacked testamentary capacity. There was no evidence whether, and if so to what extent, the dementia that Dr Khan reported in 2008 had worsened. In 2008 Dr Leung reported Mrs Barakett as possibly showing early symptoms of cognitive impairment. But there is no medical evidence as to whether her cognitive capacity worsened, and if so, to what degree. 23. In my view the most significant evidence bearing on her testamentary capacity are her responses, through the interpreter, to the questions asked by Mr Aurelius. 24. The instructions given by Mrs Barakett on 31 January 2013 demonstrate that she understood that a will would dispose of her property after her death, that she understood the general nature of her property, and was able to weigh the claims of her sons on her testamentary bounty. 25. Tony Barakett was instrumental in arranging for the execution of the new will under which he substantially benefits. This is a suspicious circumstance that requires a vigilant consideration as to whether Mrs Barakett knew and approved the contents of the will. But her instructions to Mr Aurelius demonstrate that she did so. The will was prepared in accordance with those instructions. I conclude that Mrs Barakett had testamentary capacity and knew and approved the contents of the will. There should be a grant of probate in solemn form of Mrs Barakett's will of 13 February 2013. Family Provision Claim 1. As noted at para [7], Tony Barakett also seeks an order for provision out of the estate by way of a Crisp order to provide for the continued provision of accommodation to him if for any reason he has to vacate or chooses to vacate the Cobb Avenue property. He also sought an order for provision by way of a legacy of $125,000. A provision of that order would exhaust the cash resources of the estate. 2. The application for an order for further provision to be made for Tony Barakett's maintenance, education or advancement in life was made by his filing of his cross-claim on 5 August 2014. Mrs Barakett died on 25 May 2013. Thus the application was made more than 12 months after her death. Section 58 of the Succession Act 2006 (NSW) is relevant. Subsection 58(2) provides: "(2) 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." 1. Although awkwardly expressed, subs 58(2), in effect, empowers the Court to extend the time for applying for a family provision order if sufficient explanation or sufficient justification or excuse is provided for the application not having been brought within 12 months of the deceased's death. The delay is explained by the fact that Lou Barakett, who is named as the executor of both the 1974 will and the 2013 will did not apply for a grant of probate of either will until his statement of claim seeking a grant of probate in solemn form of the 1974 will was filed on 7 July 2014. While an application for a family provision order can be made even though there has been no grant of administration of the deceased person's estate, in the circumstances of this case the delay in applying for probate and the uncertainty as to whether there would be a dispute in relation to the validity of the 2013 will provides sufficient justification for the extension of time in which to apply for a family provision order. 2. At the time of the hearing the estate consisted of the property in Cobb Avenue, Jamisontown, and moneys held on deposit totalling approximately $206,000. The plaintiff's costs on the indemnity basis were estimated to be $62,000. The defendant's costs (also on the indemnity basis) were estimated to be $73,275. 3. Of the $62,000 estimated to be the plaintiff's costs on the indemnity basis, $7,000 had been paid prior to the hearing, leaving approximately $55,000 to be paid from the moneys on term deposit if costs were payable on the indemnity basis. 4. If all of the costs come out of the estate there will be approximately $71,000 in cash, which under the will would be distributable to the three brothers in equal shares, that is, approximately $24,000 each. Tony Barakett submits that he should receive all of that cash as provision for his proper maintenance and advancement in life. Without yet having heard submissions on costs, the prima facie position is that as Tony Barakett has been successful in establishing the validity of the 2013 will, he will be entitled to his costs in respect of that part of the proceeding out of the estate. Prima facie Lou Barakett who was appointed as representative of the estate to defend the family provision claim will be entitled to his costs on the indemnity basis so far as they relate to that claim. I will need to hear argument as to whether Lou Barakett's costs of the probate claim should also be paid from the estate or whether there should be no order as to those costs (see Gray v Hart; Re Estate of Harris (No. 2) [2012] NSWSC 1562). On any view, the cash in the estate will be less than the amount of $125,000 that Tony Barakett says he should receive by way of provision for the exigencies of life. 5. At the time of the hearing Tony Barakett had little under $9,000 in savings, a very old Datsun motorcar, some tools and a compressor and furniture of negligible value. He was in receipt of the aged pension. 6. Tony Barakett submitted that further provision other than that provided for under the 2013 will should be made for him in order that the provision be adequate for his proper maintenance and advancement in life having regard to the various considerations referred to in s 60(2) of the Succession Act. 7. His relationship with his mother was extremely close. He was the one who assumed the role of his mother's carer and attended to all her needs, including her personal care needs. It was submitted for Tony Barakett that what he did for his mother went above and beyond what is expected of a child with his being on call most of the time, except for 45 minutes a day. He carried out the most basic of duties to help his mother. It was through his efforts that Mrs Barakett was able to stay at home and did not have to go into a nursing home. He has few financial resources and no earning capacity. He has not done well in life and suffers from some mild mental disability. He has no prospect of work. He is 69 years of age. His mother maintained him by providing accommodation for him. Household expenses were also paid out of his mother's income. There is no-one else liable to support him. 8. The only competing claims on the deceased's testamentary bounty were those of his brothers. Only Barry Barakett raised his financial circumstances as a material consideration. Barry Barakett is married. He and his wife own a house in St. Marys which is unencumbered and they have in excess of $400,000 on term deposit. They own two cars, one of which was subject to a $15,000 loan. Barry Barakett receives a part age pension and his wife, who is also retired, receives a superannuation pension. They are comfortably better off than Tony Barakett. 9. Lou Barakett did not put forward his financial circumstances as a competing financial claim. 10. However, both brothers had substantial claims on their mother's testamentary bounty that were not based on financial need, but arise from their upbringing, their filial relationship with the deceased and their attention to her. She recognised their claim on her testamentary bounty by saying up to at least 2003 or 2004 that not one son would get a cent more than another. 11. In 1959 when Lou was 15 he went to live with his mother at Villawood. Up until his early 20s he paid the majority of his earnings to his mother and acted as the man of the house with his earnings being dedicated to saving or helping his mother. Up until 2008 his mother consulted him in any decision regarding her finances. He also read mail for her and generally assisted her in living in Sydney with very limited English skills. He married his first wife in 1968. They lived with Mrs Barakett until about 1970 when they moved to Bankstown and later to Mt. Druitt. He and his wife still saw Mrs Barakett very regularly and Lou describes his mother as a very close and doting grandmother to his five children. Even after leaving home Mrs Barakett would bring her mail to Lou for interpretation and advice. She asked Lou to check her bank book to see that her pension was being duly paid into her account. 12. Until Barry's appointment as Mrs Barakett's financial manager, Tony had access to his mother's bank account. Mrs Barakett told Lou that she could not trust Tony with her money. Not long before the Guardianship Tribunal hearing in 2008 Lou noticed that there had been a series of withdrawals from Mrs Barakett's bank account in amounts of $2,000 that were inconsistent with his mother's conduct of the account. She never took more than $200 from her account at any one time. When asked about the $2,000 withdrawals she said she never withdrew the money. The $16,000 had been withdrawn by Tony. To make up for the fact that Tony had withdrawn $16,000 in degrees from the account Mrs Barakett gave Lou and Barry $16,000 in cash and said to them words to the effect: "Now that all of you have received the same there is no reason for Tony to go back to jail again. Just leave it at that. Nothing more is to happen about the matter." 1. From 2009, with Barry's agreement, Lou took possession of Mrs Barakett's bank book. He did this after he discovered that another $500 was missing which Tony admitted to having taken. 2. As noted above, Barry took the responsibility of being his mother's guardian and financial manager. He made the application because he and Lou observed that their mother needed extra care than that which Tony could provide. Tony resisted the application, but it was clearly in Mrs Barakett's best interests. One result of Barry's being appointed as financial manager was that Tony had to account for the expenses he incurred on behalf of his mother. 3. Mrs Barakett was in the best position to weigh her sons' claims on her testamentary bounty. Until very late in her life she considered that all the sons should share her estate equally. This was notwithstanding that Tony lived with her all his life, had not married and had become her carer. Whilst this arrangement reflects Tony's devotion to his mother, it had significant advantages for Tony. He was unable to hold down a job. He was not responsible with money. The arrangement meant that he was provided for. Although he was devoted to his mother he did not deny that he took advantage of her financially. 4. If Mrs Barakett's 2013 will were invalid, I would accept that the provision of one-third of her estate would be less than adequate for Tony Barakett's proper maintenance and advancement in life. Lou appears to have recognised as much in that after Mrs Barakett's funeral when he believed that the 1974 will was his mother's last will he told Tony that he could stay in the house. It was then that Tony told Lou that their mother had made a new will. 5. But I am not persuaded that an additional provision beyond that that Mrs Barakett provided for in her 2013 will is necessary to provide adequate provision for Tony's proper maintenance and advancement in life. The provision of rent-free accommodation is a valuable benefit. I do not think that an interest that might be described as a "portable life interest" whereby Tony could require the house to be sold and the proceeds applied in providing him with alternative accommodation for his life is necessary to provide such adequate provision for his proper maintenance and advancement. If he chooses to leave, or has to leave, the Cobb Avenue property, it can then be sold and he will be entitled to one-third of the proceeds of sale. He did not adduce any evidence as to what sums might be required to be paid in order to obtain suitable alternative accommodation in a retirement village or nursing home. There was no evidence that his share of the proceeds from the sale of the house would be inadequate for that purpose. The pension is adequate for his day-to-day needs which are not extensive. He has been able to save money. Most of his costs would have been incurred in relation to the probate claim and he will be entitled to these, at least on the ordinary basis, out of the estate (subject possibly to any offer of compromise that might have been made). He will be entitled to one-third of the cash in the estate after payment of the estate expenses, including costs. 6. For these reasons there will be a grant of probate in solemn form of the 2013 will, or a grant of letters of administration with that will annexed. Lou Barakett is named as the executor of that will. He has not sought a grant of probate of that will, but I understood that he agrees to act as executor of that will if it is found to be valid. The claim for provision will be dismissed. I will hear the parties on costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2016