Doric v Orec [2025] NSWSC 245 (24 March 2025)

Last Updated: 24 March 2025

Supreme Court New South Wales

Case Name:	Doric v Orec
Medium Neutral Citation:	[2025] NSWSC 245
Hearing Date(s):	3-6 March 2025
Date of Orders:	24 March 2025
Decision Date:	24 March 2025
Jurisdiction:	Equity – Probate and Family Provision List – Probate
Before:	Peden J
Decision:	At [161]
Catchwords:	SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Where sole beneficiary drafted will in English — Whether deceased understood English SUCCESSION — Contested probate — Testamentary capacity — Memory issues — Dementia — Where deceased suffered from depression — Where later will’s bequests consistent with earlier will SUCCESSION — Family provision — Claim by adult child — Whether inadequate provision — Operation of law of intestacy — Where insufficient evidence of financial and material circumstances — Where claimant lived with deceased — Where insufficient evidence led by claimant
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Succession Act 2006 (NSW) ss 6, 8, 57-60, 99, 127
Cases Cited:	Anderson v Yongpairojwong [2024] NSWCA 220 Bassett v Bassett [2021] NSWCA 320 Blendell v Blendell [2020] NSWCA 154 Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 Burke v Burke [2015] NSWCA 195 Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328 Chapple v Wilcox [2014] NSWCA 392 DJ Singh v DH Singh [2018] NSWCA 30 Durham v Durham [2011] NSWCA 62; (2011) 80 NSWLR 335 Frank v Angell [2024] NSWCA 264 Grover v NSW Trustee & Guardian [2015] NSWSC 1048 Hatsatouris v Hatsatouris [2001] NSWCA 408 Jeffreys v Sheer [2025] NSWCA 31 Lim v Lim [2023] NSWCA 84 Megerditchian v Khatchadourian [2020] NSWCA 229 Mekhail v Hana [2019] NSWCA 197 Spata v Tumino [2018] NSWCA 17 Stone v Stone [2019] NSWSC 233 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197
Category:	Principal judgment
Parties:	Judy Nada Doric (Plaintiff) Darko Orec (Defendant)
Representation:	Counsel: A G Rogers (Plaintiff) R Bianchi (Defendant) Solicitors: Alexander Richards Lawyers (Plaintiff) O’Neill Solicitors (Defendant)
File Number(s):	2023/00093724
Publication Restriction:	Nil

JUDGMENT

1. Bozica Orec died on 27 March 2022, aged 88. Her children with her late husband, Mato Orec, are Michelle Orec, Judy Doric, and Darko (Darryl) Orec. Those children are now in dispute about her estate.
2. Without meaning any disrespect, in these reasons I refer to the deceased and members of her family by their first names.
3. Bozica’s estate largely consists of a single asset, being the property at Regents Park, in which she was living when she died. A real estate agent’s market appraisal dated 31 January 2025 valued it at approximately $1.4 to $1.5 million.
4. In dispute are two purported joint wills of Mato and Bozica. One informal will dated 29 May 2001 was only witnessed by one person. Another was dated 3 July 2016.
5. Mato died on 26 January 2019, aged 89. There is no dispute that his whole estate passed to Bozica.
6. Both disputed wills name Darryl as the sole beneficiary of Bozica’s estate.
7. Judy contended that Bozica could not understand either will, both of which were prepared by Darryl and written in English. Further, she contended that Bozica had dementia at the date of the 2016 will.
8. Judy sought a declaration that Bozica died intestate, such that her estate would be divided equally between the three siblings.
9. If neither will is admitted to probate, Darryl has claimed further provision from the estate under s 59 Succession Act 2006 (NSW).
10. The issues for determination were as follows:

(1) Is the 2016 document a valid will? This requires a determination of Bozica’s cognitive capacity and understanding of the document she signed.

(2) If not, is the 2001 document a valid will? This requires a determination of whether Bozica understood and intended the informal document to be her will.

(3) If neither will is valid, is Darryl entitled to further provision from Bozica’s estate, and if so, how much?

11. Obviously, Bozica cannot give evidence of her actual intentions and I must determine on the balance of probabilities her likely intentions, language and cognitive capacity based, to a large extent, on competing evidence from her children. Therefore, credibility of the witnesses is of significance here.
12. Assessing the credibility of witnesses invites considerations beyond mere ‘demeanour’, which primarily concerns whether a witness appears to be telling the truth as she believes it to be. Witnesses, especially those who think they are morally right, may subconsciously to conjure up a legal right that did not exist. Over time, one’s memory becomes fainter and one’s imagination may become more active. Accordingly, contemporary documents are of significance. Further, in assessing the credibility of a witness, one relevant factor is that witness’s potential motivations: Jeffreys v Sheer [2025] NSWCA 31 at [36] (Adamson JA, Mitchelmore JA and Basten AJA agreeing).

2001 purported will

13. While Darryl’s primary case was based on the purported 2016 will, below I consider events in a chronological manner, including the efficacy of the 2001 document.
14. On 29 May 2001, Mato and Bozica signed a document, with Gordana Cizmak signing as a witness. At the time, Gordana was Darryl’s girlfriend, with whom he lived. Later they married. They divorced in around 2010. Gordana is also the mother of their two children, Bruno and Luca, who currently live with Darryl.
15. The 2001 will reads:

Dated: 29 May 2001.

TO WHOM IT MAY CONCERN

Let it be known that we MATO OREC & BOZICA OREC make this our testimony.

1. I, MATO OREC, in the event I lose my life or am not able to function of a sound mind or body that all my belongings, possessions and all ownership and power of attorney hereby bequeath to my wife BOZICA OREC.

2. I, BOZICA OREC, in the event I lose my life or am not able to function of a sound mind or body that all my belongings, possessions and all ownership and power of attorney hereby bequeath to my husband MATO OREC.

3. In the event that we both MATO OREC & BOZICA OREC lose our lives or are not able to function of sound minds or body that all our belongings, possessions and all ownership and power of attorney hereby bequeath to our son DARRYL OREC.

4. In the event that we both MATO OREC & BOZICA OREC lose our lives or are not able to function of sound minds or body and our son DARRYL OREC loses his life, that all our belongings, possessions and all ownership and power of attorney hereby bequeath to our daughters MICHELLE (ZDENKA) OREC & JUDY (NADA) DORIC equally.

5. In the event that we both MATO OREC & BOZICA OREC lose our lives or are not able to function of sound minds or body and our son DARRYL OREC, daughters MICHELLE (ZDENKA) OREC & JUDY (NADA) DORIC loses their lives, that all our belongings, possessions and all ownership and power of attorney hereby bequeath to our grandson VINCE (VINKO) BOGDANOVIC and granddaughters DANIELLA HAMIDAN, ANTONIA DORIC & STEFANIE DORIC equally.

Was the 2001 will a “testamentary instrument”?

16. The 2001 will does not comply with s 6 Succession Act, because there were not two witnesses present when it was signed.
17. However, Darryl submitted that the 2001 will ought to be accepted as a valid testamentary instrument by reason of s 8 Succession Act. Section 8 applies in respect of documents which purport to state the testamentary intentions of the deceased, but were not executed in accordance with the Act. Pursuant to s 8(2), the Court may determine that the document constitutes a valid will where it is satisfied that the deceased intended it to form her will. In making that determination, the Court may have regard to, inter alia, evidence relating to the execution of the document, and any evidence of the deceased’s testamentary intentions.
18. Powell JA explained in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] (Priestley and Stein JJA agreeing) that the relevant questions are:

(1) Whether there was a document;

(2) Whether the document purported to embody the testamentary intentions of the deceased; and

(3) Whether evidence satisfied the Court that, either, at the time of the subject document being brought into being, or, at some later time, the deceased, by some act or words, demonstrated that it was her then intention that the subject document should, without more on her part, operate as her Will.

19. Judy claimed that Bozica did not have a demonstrated intention that the document should operate as her will. In particular, Judy alleged:

(1) Bozica could not understand the English words used, and she could not have read it and agreed to it; and

(2) There were “suspicious circumstances” surrounding the creation of the document, because Darryl created it, and under its terms, he would receive the entire estate.

20. Judy did not allege that Bozica lacked testamentary capacity in relation to the 2001 will.

Circumstances leading to creation of 2001 will

21. The document was created shortly before Mato, Bozica, Darryl and Michelle went to Croatia for a family wedding. It was the first time Mato and Bozica had been back to Croatia since emigrating to Australia in 1969.
22. Darryl and Michelle gave evidence that because of the impending travel the next day, the 2001 purported will was created in case the plane crashed or something happened.
23. Gordana recalled having organised the family’s tickets because she was working for the airline at the time. On the day the document was signed, she and Darryl attended Mato and Bozica’s home and discussed the trip. Gordana was not challenged on her memory that the discussion between the parents and Darryl was “to the effect [of] what if something happens to us” and “[w]e need to sign a will in case something happens to us”. Judy did not deny that, at the time, Bozica was anxious about going back to Croatia.
24. I accept that Bozica wanted Darryl to prepare a document as her will because she was concerned that something might happen to her while travelling to and from Croatia.
25. Darryl’s unchallenged evidence was that after his parents raised their concerns, he created the document at their house, by typing it and printing it for them. It was not suggested to him that he brought a pre-prepared document to the meeting. That is consistent with Gordana’s evidence that she did not recall Darryl bringing the document from their home.
26. No other witness gave evidence about the preparation of the document. Michelle was not present when the document was created or signed. However, her evidence was that Bozica showed her the document the next day in front of Darryl and Gordana. Michelle recalled Bozica having explained that she was worried in case anything happened while they were overseas and that the document gave Darryl the house and their money. Bozica told her that she had told Judy the document would be there, should something happen while they were travelling. Michelle was not shaken in her evidence that her recollection was accurate and I accept it was likely Bozica told Michelle about the document.
27. I accept that Darryl prepared the document based on what he understood were his parents’ wishes. His affidavit evidence was that his parents “read the typed document out loud, line by line, and then each signed the document in front of Gordana”. However, he accepted in cross-examination that “they’re their words ... where they had to be translated they were translated.” He also accepted that the will was dictated partly in English and partly in Croatian.
28. I also consider it important that Gordana was not challenged on her evidence that Bozica or Mato said to her, “Gordana can you witness our signatures? It needs to be someone independent”. The understanding that an independent witness was needed is a strong indicator that Bozica and Mato intended the document to be formal and to record their testamentary intentions.
29. However, Judy asserted that Bozica could not read and understand English, and could not have read or understood the language used.

Bozica’s level of English in 2001

30. Much evidence was led by the parties about the extent to which Bozica could speak, read and understand English. Judy asserted that Bozica lacked the requisite English ability to comprehend what she was signing in 2001 and in 2016. Darryl asserted that Bozica had sufficient English to read, speak and understand English, and she did read and understand the 2001 document.
31. While the parties did not make separate submissions about any difference in Bozica’s English fluency between 2001 and 2016, there is more evidence of her fluency from 2010 onwards, including in 2016, when issues of her health became more prominent.
32. In assessing Bozica’s English language ability, I have had regard to both documentary evidence and witness testimony. The former was limited. For example, there were no documents where Bozica had written in English.
33. Most of the witnesses who gave evidence about Bozica’s fluency in English themselves spoke Croatian. They spoke mostly Croatian, their first language, with Bozica, with only some English used.
34. Darryl’s evidence was that his “parents were educated people who spoke both English and Croatian.” Darryl said that they were capable of speaking, reading and writing English “fluently”. He explained that they spoke in a mixture of both languages, something other witnesses corroborated. Darryl conceded that his “parents were more fluent in Croatian than they were in English.”
35. Gordana spent time with Bozica until 2010, when she and Darryl separated. Her evidence was that Bozica watched English television, read in English and could speak English on an “average basis”. She said, “[t]heir English was good enough to understand, [to] write, to read”. However, Gordana conceded that, in her company, it was rare that Bozica spoke English, given that those around her were Croatian speakers. Michelle’s evidence was that both her parents could read, write and speak English. She said that neither of them required an interpreter. She did not resile from that evidence in cross-examination.
36. However, Judy’s witnesses gave evidence that Bozica lacked English fluency.
37. Judy’s affidavit evidence was that her parents “always spoke in Croatian”. However, during cross-examination, she conceded that Bozica could speak “very, very basic” English, but at first emphasised that Bozica was unable to “read English at all”. Judy stated that Bozica was unable to complete a course at TAFE, despite having worked very hard, because of her inability to understand English. However, documentary evidence demonstrated that Bozica successfully passed three final examinations in 1983 and a further three mid-year examinations in 1984 at TAFE. This is inconsistent with Bozica possessing the very low level of English that Judy asserted. Further, Bozica worked for Bankstown Council doing cleaning. I infer she must have been able to communicate in English to hold that position.
38. Further, Bozica also worked in Judy’s childcare centre as a volunteer. Judy accepted that her mother needed to be able to communicate to other staff and follow instructions given in English.
39. I note in this regard, Judy appeared to try to minimise her mother’s language abilities. She rejected the suggestion her mother had worked in her childcare centre for about 10 years and said “not [a] period of time [in] years, no”. She said her mother started and did “some ... basic training” in or around 1997. However, in 2002 Bozica obtained a certificate concerning training for childcare. There was no suggestion the training was in Croatian. Further, other witnesses said that Bozica was working at the childcare centre until about 2013. I find that on the balance of probabilities, Bozica worked at Judy’s childcare centre using sufficient English to communicate and read what was necessary from 1997 to 2012.
40. Without giving a time frame, Bozica’s granddaughter, Daniella, gave evidence that Bozica could not read English, could only communicate verbally in English “on a very limited scale”, and was only capable of “broken English”. However, it appears that Daniella, as with the family generally, spoke with Bozica in Croatian and there was little or no need to speak in English.
41. Daniella’s friend, Cherrie Evans, had interacted with Bozica since about 2001 at family celebrations and gatherings. Ms Evans described Bozica’s level of English as “very limited” and stated that she required Daniella to translate between English and Croatian for conversations beyond a basic level. However, Ms Evans’ stated that Bozica could say phrases such as “[c]ome eat. Parsley good for stomach”. I consider such a statement indicates that Bozica had a reasonable vocabulary beyond mere greetings. Ms Evans never observed Bozica reading documents; their interactions were limited to social family gatherings, including dinners at restaurants.
42. Marilyn Lauscaran, another friend of Daniella, gave evidence of speaking with Bozica between about 2008 and 2012 primarily in Croatian, that being her first language also. Her evidence was that Bozica “spoke very limited and broken English” or “conversational” English.
43. Michelle’s son, Dante (also known as Vince or Vinko), had sworn an affidavit in the proceedings in July 2023. However, by the time of the hearing, he had died. His affidavit was read subject to weight because his evidence could not be tested in cross-examination. Dante’s evidence was that he suffered depression, used cocaine and methamphetamine, and had been to prison for fraud. Also, about 12 months before his affidavit, he was charged with possession of methamphetamine and was sentenced to four weeks in prison. While that evidence about his criminal activity may well be true, it is difficult to place a lot of weight on his evidence about Mato and Bozica’s English language ability, where it is not clear whether his cognitive abilities and memories were affected.
44. In any event, most of Dante’s evidence concerned Mato’s language abilities and not Bozica’s. He did state that Bozica “could not read English. She could communicate on a limited scale in English”, and that she would have been able to “read the odd word” in the 2001 will. He gave no detail of examples of experiences to substantiate his conclusions, despite having lived with Bozica. This evidence is therefore of little, if any, weight.
45. Anna George had some form of romantic relationship with Darryl in around 2013. Her evidence was that Bozica’s “ability to communicate in English was very limited. She was not fluent in English at all. Her English was broken and I had to speak with her slowly for her to understand”. However, no examples were given to demonstrate her conclusions and she gave no evidence of the length of interactions with Bozica. Darryl denied Anna had a lengthy relationship with him or that she interacted with Bozica, about which he was not challenged.
46. In summary, all witnesses considered that Bozica could speak at least conversational English. I accept that witnesses who spoke Croatian themselves were more likely not to speak English with Bozica and would have had less experience of witnessing her speak English. I consider that this level was sufficient for Bozica in 2001 to communicate with English speakers everywhere she went, employers, children, and supervisors at the childcare centre.
47. In terms of Bozica’s ability to read, despite Judy having denied that Bozica could read in her affidavits, her evidence in cross-examination was:

... she would struggle to read one sentence. Very, very slow. Like she needed glasses, she needed to focus ... after few, few words she stuck, she doesn’t know where to take it any further ...

48. In contrast, Darryl, Michelle and Gordana’s evidence was that Bozica could read English. I accept that as Darryl was living with his parents, he is likely to have seen them reading English more often than Judy. Dante also accepted Bozica could read a little. I prefer Darryl’s evidence and that of Michelle and Gordana to Judy’s for the various reasons identified below.
49. I accept Bozica could read English, even though her reading speed may have been slow and she may have needed to take time to consider and decipher words. That level of ability would have been necessary to complete her qualifications, travel (including driving), interact with her community, and read at least part of magazines to understand the pictures that Judy accepted she looked at.

Language used in 2001 will

50. Above I have found that, in May 2001:

(1) The will was prepared as Darryl deposed;

(2) Bozica wanted to sign a will and understood the document to be her will; and

(3) She could understand spoken English and read some English.

51. Therefore, the issue is whether Bozica understood the words used in the 2001 will and whether that document represented her testamentary intention.
52. Judy gave evidence that her parents never referred to their assets as “future, joint, or singular assets” as written in the 2001 will. However, beyond that phrase in the document, she did not suggest that Bozica would not have understood the other words used.
53. Judy’s counsel submitted that the words “testimony” and “bequeath” were complex legal words that would not have been known to Bozica.
54. I do not accept that Darryl’s inclusion of those words in the 2001 will means that Bozica did not understand and intend their meaning. For example, “testimony” was a lay person’s error for “testament”. However, I consider it clearly was intended to indicate that the document was a will and it was a formal document. Similarly, the use of “power of attorney” is a layperson’s understanding of what was involved, but again demonstrates the intention that the document was serious, if not legally accurate.
55. Darryl considered the word “bequeath” was not complicated, and again is language that may have been understood in English by Bozica, or as Darryl indicated above, it may have been translated.
56. I do not accept that the document as a whole is complicated in its language. The same language of gift is repeated throughout based on different possible situations.

Conclusion

57. Based on the above, I consider the 2001 will did embody Bozica’s testamentary intention and she intended it to operate as her will. Further, I do not accept there were suspicious circumstances surrounding the document’s creation by Darryl. In reaching these conclusions, I prefer the evidence of Darryl and Michelle over Judy’s for a few reasons.
58. First, I do not accept the suggestion in cross-examination of Michelle that her evidence was false because Darryl offered to share the estate, should he be successful in the litigation. Darryl was not asked whether he had made such an offer to Michelle. In any event, I consider Michelle’s evidence was cogent and honest. She will be financially worse off if either will is upheld. I accept her evidence was based on her understanding from conversations with her parents about their intentions.
59. Secondly, as identified above, I consider that Judy attempted to give evidence that assisted her case. She tried to minimise Bozica’s involvement in her childcare centre and her language abilities and failed to explain the contrary evidence in a satisfactory way.
60. Accordingly, I consider there is sufficient and satisfactory evidence to order that the 2001 will be admitted to probate pursuant to s 8 Succession Act, should the 2016 will not be valid. However, as discussed below, I do consider that the 2016 will was valid, and therefore it superseded the 2001 will.

2016 purported will

61. The 2016 will relevantly reads:

OUR WILL

3rd July 2016

Will of:

Mato OREC – DOB: 15.08.1929 – of 6 Hope Street ..., and

Bozica OREC – DOB: 16.12.1933 – of 6 Hope Street ...

Assets...

our assets are;

House and contents at; 6 Hope Street Regents Park NSW 2143 Australia

Bank account:

Commonwealth Bank; Bozica OREC and MATO OREC; No: 76 2232 16094; Branch: Regents Park

Commonwealth Bank; Mr Mato Orec, MRS Botica [sic] Orec; No: 76 2334 50001620; Branch: Regents Park

AND ANY OTHER AND ALL ASSETS IN AUSTRALIA OR ELSEWHERE

Our daughters ... Michelle ... and Judy ... have been provided for in the past with financial help, physical labour and support in building their homes and bringing up their children.

Michelle and Judy have not contributed to building nor acquisition of our assets and they have been told verbally that all the financial assets and physical help given to them in the past is their final and full inheritance. As such they have been made aware that they have no further right nor part of our current and future joint or singular assets of Mato and Bozica Orec.

Our son Darryl ... has physically and financially aided in building and maintaining our home and assets and is further assisting in maintaining our livelihood and running of the household and has been doing so since we (Mato and Bozica Orec) started building our home over 40 years ago.

We additionally declare that some years ago through a court case involving a motor vehicle accident where we were both innocent parties to, court and legal fees exceeded our liquid assets, hence we were to lose our home and all assets in fees and other costs. Our son Darryl ... intervened and through his intervention has saved our home and all assets, as such our daughters ... and our Darryl ... were made aware that as such we regard our home and assets to be passed on to and be under full ownership of our son Darryl ... after our passing (death). Our children have been made aware of our wishes.

It is our wish and instruction that all our current and future assets be the sole property and right of our son Darryl ...

62. At the end of the hearing, Judy’s challenges to the 2016 will were that:

(1) Bozica lacked testamentary capacity when signing the 2016 will, because she was suffering from dementia; and

(2) The 2016 will was executed in suspicious circumstances and Bozica did not know and understand its contents and effects. Judy alleged that Bozica was unable to read or write English and that the will was prepared by Darryl, who was the sole beneficiary of the estate under its terms.

Legal principles

63. The Court must be able to identify that an instrument represents the last will of the deceased as a free and capable testator. The principles governing the issue of testamentary capacity were set out in Lim v Lim [2023] NSWCA 84 (Lim) at [7]-[9] by Kirk JA (Bell CJ and Griffiths AJA agreeing), as follows. Testamentary capacity encompasses the following elements, which are prone to overlap and ought not to be read prescriptively:

(1) The capacity to understand the nature of the act of making a will and its effects;

(2) The capacity to understand the extent of the property the subject of the will;

(3) The capacity to comprehend moral claims of potential beneficiaries;

(4) 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; and

(5) While the test of capacity is generic, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents, the easier it may be to establish the requisite capacity.

64. In Lim at [10], Kirk JA (Bell CJ and Griffiths AJA agreeing) observed that a “precondition of a valid will is that the testator knew and approved of the contents of the will”. That may require, in some cases, proof that the testator, “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”: at [10].
65. Where a party seeks to contend that “suspicious circumstances” existed in the creation of a will, those circumstances should be identified so they can be appropriately addressed by evidence and submissions: Anderson v Yongpairojwong [2024] NSWCA 220 at [163] (Bell CJ, Mitchelmore JA agreeing).
66. The term “suspicious circumstances” is a term of art, the precise limits of which are not yet settled: Mekhail v Hana [2019] NSWCA 197 at [170]- [172] (Leeming JA, Basten JA agreeing).
67. Ordinarily, if a “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 in circumstances which raise a doubt as to the existence of testamentary capacity” such that “the evidential burden [shifts] to the party propounding the will to show that the testator was of ‘sound disposing mind’”: Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 (Tobin) at [45] (Meagher JA, Basten and Campbell JJA agreeing). However, “[p]articular vigilance is required where a person who played a part in the preparation of [a] will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction”: Tobin at [47].
68. Older people may be aware that they own property, but lack an accurate understanding of the value of that property at a particular time. In circumstances where a person understands the assets which comprise their estate, the absence of knowledge as to the precise value of those assets does not mean they are unable to distribute those assets by will: see eg Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas) at [64] (Hodgson JA, Bergin CJ in Eq and Young JA agreeing).

Capacity

69. From 2010, Judy started taking Bozica to see a geriatrician and consultant physician, Dr Mariam Joseph. They knew each other because Dr Joseph’s children had attended Judy’s preschool. I do not consider they had any relationship beyond the level of acquaintances. Dr Joseph did not speak Croatian.
70. In her later years, Bozica suffered from dementia. The first suggestion that Bozica might have suffered from dementia was on 10 August 2010. In a report on that date, Dr Joseph noted that Bozica scored 19/30 on the Rowland Universal Dementia Assessment Scale (RUDAS). RUDAS is a cognitive screening instrument designed to assess baseline cognitive performance, from which dementia can be indicated. However, a determination of a diagnosis of dementia requires a more holistic assessment than merely determining a RUDAS score in a clinical setting. Dr Joseph noted that Bozica did not believe she suffered from significant memory problems, but that Judy was concerned about her. However, Bozica continued to work in Judy’s childcare centre until 2013. It is unclear whether Dr Joseph was ever informed of Bozica’s work.
71. For the 2016 will, the most significant report of Dr Joseph concerning Bozica’s cognitive abilities was dated 11 January 2016, which relevantly recorded:

Early dementia. She has developed confusion after replacing her knee. Her memory got worse and has been through tough times in the past and is coming back to her. Her [long term memory] is Ok but not short which has been deteriorating. She was prescribed antidepressants in the past but she did not use it. She has been a bit moody and aggressive every now and then with family. She started hoarding. She has been forgetting to eat and needs lots of help with activities of daily living.

Depressed mood for which I have started her on Zoloft 50mg ½ daily.

Her husband has taken care of power of attorney. There is some tension between husband and wife. There is no will that was made. The patient wants her own independency from husband.

They need to know if they can do a will now. I have suggested a neuropsych assessment.

...

On rudas today she scored 16/30. She would be entitled to have memory tablets but I would treat the mood first then reassess her memory.

... She has had a delirium associated with feeling unwell.

72. Dr Joseph candidly stated that she relied upon Judy to give an accurate summary of matters concerning Bozica. Judy accepted that she gave Dr Joseph the information contained in the report. To the extent that Dr Joseph’s reports recorded that Bozica exhibited various symptoms, these were primarily based on what Judy told her, rather than what Dr Joseph observed in a consultation. In circumstances where other witnesses have not corroborated these symptoms, I do not consider Dr Joseph’s records are conclusive as to those symptoms.
73. Dr Joseph did not see Bozica again until 6 April 2017, which was after the 2016 will was signed. No “neuropsych” report was obtained.
74. Professor Carmelle Peisah, a highly qualified and experienced old age psychiatrist, gave evidence as a jointly appointed expert about Bozica’s mental state on 3 July 2016, and its likely effect on her capacity to understand and appreciate the nature of making a will and the will’s effect.
75. Professor Peisah accepted that her assessment as a retrospective expert, having never seen Bozica, was limited, as she could only rely on Bozica’s medical reports and the family’s affidavits describing her.
76. Based on that material, Professor Peisah concluded that it was likely at 3 July 2016 that Bozica was suffering from moderate dementia, complicated by significant behavioural changes including aggression, agitation and depression. She considered that Bozica likely had an awareness and appreciation of the significance of making a will, but would have been limited in her understanding of the extent of her estate, and the respective strengths of the claims of persons who might reasonably be thought to have a claim on her estate.
77. During cross-examination, Professor Peisah explained that she would “never preclude the right to make a will based on a person’s mental state” and that other factors had to be considered when determining whether a particular person could make a particular will at a particular time. For instance, she said that even someone with “very severe dementia” could make “a very simple will in certain situations”.
78. Professor Peisah noted that Bozica exhibited a “range of abnormalities”, including memory loss, visuospatial damage, orientation difficulties, hoarding, pacing and aggression towards family members.
79. However, Professor Peisah conceded that if it was found the facts recorded in the medical reports or affidavits were not accurate, then her conclusions may well be different.
80. I do not accept the following facts recorded in Dr Joseph’s January 2016 report, which were relied upon by Professor Peisah.
81. First, the report stated that Bozica was aggressive towards her family. However, there was virtually no evidence of Bozica being aggressive. In one affidavit, Judy stated:

In about 2016, my mothers [sic] diagnosis of dementia progressed to advanced and my mother’s dementia was extremely severe. She would sometimes forget who I was. ... she was also extremely aggressive.

82. However, Judy’s evidence about Bozica’s aggression was much more limited in cross-examination. She only referred to Bozica being confused in hospital after her knee replacement and the nurses having trouble with her. Nevertheless, Judy maintained that her mother was “very aggressive” without any detail.
83. I consider Judy’s evidence was exaggerated. There was no other evidence from any of the multiple witnesses that Bozica had ever been aggressive at all. Michelle was not challenged on her evidence that her mother was never aggressive. Darryl, who lived with Bozica, was not asked about any aggression Bozica might have exhibited. Even if Bozica had been aggressive in hospital after an operation I do not accept that it can be inferred that she was generally so, and not with family.
84. Contrary to Judy’s statement, there was no medical diagnosis at the time of “advanced” dementia, nor that it was it “extremely severe”, nor any recording that Bozica had forgotten who her family were. Instead, Judy knew that Dr Joseph’s diagnosis, based inter alia on facts provided by Judy, was recorded as “early” dementia.
85. Secondly, there was also no evidence from any witness, including Judy, that Bozica had started hoarding, as referenced in Dr Joseph’s January 2016 report, or that she was pacing, as referenced in Dr Jospeh’s April 2017 report. Similarly, there was no evidence, including from Judy, about Bozica wanting independence from her husband.
86. Professor Peisah, while trusting Dr Joseph’s assessment, explained that:

... the way we grade dementia is we look at first and foremost functional impairment, second, behaviours, the changed behaviours of aggression, agitation and pacing often associated with more moderate dementia at least and thirdly but still important ... RUDAS ...

So if she was not receiving lots of help with her activities of daily living and she was not pacing and she was not agitated and she was not aggressive towards the family, yes, that would change my perception ...

87. Darryl’s evidence was that to his observation, “there was nothing to suggest that [Bozica’s] mental capacity had deteriorated in any significant way. In addition, she was relatively independent and able to look after herself physically at the time”. During cross-examination, Darryl was taken to Dr Joseph’s report dated 14 January 2011 that commented that Bozica was suffering from memory problems. However, Darryl maintained that, to his knowledge, it was not the case that Bozica had dementia at that point, nor in July 2016 when the second will was signed. Similarly, Michelle was not challenged on her evidence that her mother was mobile and relatively independent, and that her previous bowel surgery had caused minor incontinence, which she managed herself. I consider it telling that Judy stated in 2016 that her mother “had to wear nappies”, without disclosing that Bozica had had bowel surgery that could cause incontinence. Again, I consider Judy was trying to exaggerate Bozica’s conditions to assist with a finding of want of capacity.
88. Therefore, as at 11 January 2016, the only reliable evidence (as opposed to Judy’s assertions) Dr Joseph had, upon which to base a diagnosis of “early dementia”, was the RUDAS score of 16/30 and that Bozica appeared depressed. However, at that time, Dr Joseph considered it more important to treat Bozica’s depression first to see whether that was the cause of the dementia-like symptoms.
89. Professor Peisah’s evidence was that a score of 16/30 might suggest moderate dementia in a patient. However, she further explained that the interpretation of RUDAS scores was “nuanced”, and any inferences drawn from them were “approximate”. Moreover, Professor Peisah explained in detail that depression can compound the appearance of cognitive decline and can impact on a RUDAS score, as can the time of day when the test is administered. There was no evidence of the level of Bozica’s depression. Similarly, there was no evidence of the time of day Bozica undertook the RUDAS test.
90. With no disrespect to either doctor, I consider Dr Joseph’s recorded diagnosis of “early dementia” and Professor Peisah’s diagnosis of “moderate dementia” in early 2016 were based on facts not demonstrated to be accurate, and that a different diagnosis would likely have been made, had the doctors been told that Bozica was reasonably physically independent, did not exhibit changed behaviours such as aggression towards family, pacing or hoarding, and proceeded on the basis that Bozica’s predominant issue in January 2016 was depression.
91. If I am wrong, and Bozica did have some level of dementia when signing the 2016 will, it does not necessarily follow that the will would not be admitted to probate. As accepted by Professor Peisah, it is possible that a person suffering from dementia can still have capacity to enter into a will: see eg Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328 at [15] (Basten JA, Leeming JA agreeing).
92. I note that the provision as outlined in the 2016 will was consistent with Bozica’s previously expressed intentions, including, most relevantly, her 2001 will. Because of the materials, to which she was confined, Professor Peisah did not take into account, during her assessment the 2001 will, the relevance of Bozica continuing a previously expressed wish or will. However, based on my findings about the 2001 will, I consider that its contents assist in determining other aspects of Bozica’s capacity with respect to her 2016 will.
93. Further, as discussed below, the contents of the will were not complicated and were based on factual matters known to the siblings and, I infer, known and intended by Bozica.

Contents of 2016 will

94. Judy submitted that what was recorded in the 2016 will was not true and that further demonstrated Bozica did not have capacity when making it.
95. Judy claimed that she did not receive “financial help, physical labour and support in building [her] homes and bringing up [her] children” as recorded in the will. However, her evidence was to the contrary. She accepted that her mother bought her groceries, and would push cash into her hand or her pocket, so she could not refuse it. Judy gave evidence that her parents paid her and Michelle money throughout their adult lives and gave them food. This was consistent with Michelle’s evidence; her parents gave her extensive financial help, for example, with rent and electricity bills, and this assistance extended to Judy. However, Michelle’s evidence was that this financial assistance was not extended to Darryl, although she accepted during cross-examination that he benefited from rent-free accommodation for most of his adult life. Darryl also conceded that he received that benefit.
96. Consistent with Judy’s evidence above, on 1 June 2022, she sent a message to Darryl:

They (parents) also gave all of us (Michelle and me) everything they had and never did turn their backs on us rather they filled our pockets with money and filled our fridges with food whilst we battled with life until we were stable on our feet and I am counted into this and admit how much they gave me for the first few years when we (Caco and) purchased our first home in Wakeley.

97. In cross-examination, Judy tried to say that “all of us” in the message meant the three siblings, despite the reference to only “Michelle and me”. I do not accept her evidence in cross-examination. I consider it apparent on the face of the message that it only referred to Michelle and Judy receiving cash and food, which is consistent with Michelle and Darryl’s evidence. This was another example of Judy’s affidavit evidence supporting her case, rather than being wholly accurate.
98. Judy also accepted that her parents helped care for her children. Further, despite Judy’s evidence, as noted above, I have also found that Bozica worked in Judy’s childcare business from about 1997 to around 2013 as a volunteer, which was a benefit to Judy.
99. Therefore, I consider the reference in the will to Judy and Michelle receiving financial and other support was accurate.
100. I also consider the will was accurate in recording that Darryl assisted in the house. The extent to which Darryl contributed money was unclear, but he was not challenged on his affidavit evidence that he did so. Judy did not live in the house and therefore she would have had more limited knowledge of what occurred there. She conceded “I have never seen it. I have never been told it.”
101. Further, Judy accepted that she knew about her parents’ court case involving a car accident. Further, her evidence was that Darryl and her parents had told her about Darryl helping with the legal fees for that case. Therefore, it is difficult to understand why Judy submitted that the reference to the court case assistance in the 2016 will was not accurate.
102. Consequently, I consider Judy was aware of the facts stated in the 2016 will. I consider those facts were also within the knowledge of her parents.
103. I also consider that Judy had been told of her parents’ intentions concerning their estate before the 2016 will was made. She stated she did not recall discussing a will in 2016. However, that was inconsistent with Dr Joseph’s January 2016 report referring to such a conversation, which Judy must have conveyed.
104. This conclusion does not change because in 2018, Darryl sent a message to Judy about seeing a solicitor:

Made appointment for father and me to view gravesite as requested by father. Also asked solicitor to arrange appointment ... for power of attorney for father in case he becomes unwell enough to make decisions. Thirdly also with solicitor ... to draw up will.

105. Darryl took steps to organise an appointment with a solicitor, which never eventuated. It does not appear that he prioritised organising an appointment. However, I accept Darryl’s explanation that there was discussion about having the 2016 will formalised, but this did not occur.
106. I also consider it most likely that the arrangements referred to in the message were for Mato. That is consistent with the message only referring to “father”. By 2018, the siblings knew that Bozica had lost some cognitive and physical capacity. Judy would have been unlikely to have responded “ok thx for letting me know” if Darryl was organising for their mother to see a solicitor, when Judy had been told by Dr Joseph that Bozica could see a “neuropsych” to confirm Bozica’s capacity before preparing another will. This was an appointment that Judy never organised.

Suspicious circumstances?

107. Judy submitted that the suspicious circumstances concerning the 2016 will were that:

(1) Bozica could not read or write English;

(2) The document was drafted by Darryl, who was the sole beneficiary under the will’s terms.

Language ability in 2016

108. I do not consider that there is probative evidence that Bozica’s English ability declined between 2001 and 2016. Dr Joseph was the only witness, in addition to those identified above, who spoke about Bozica’s language abilities at around the time of the making of the 2016 will. Dr Joseph’s evidence was that Bozica could understand many questions she asked her and could respond with simple answers or by nodding her head. Most of the speaking during the consultation was done by Judy on her mother’s behalf, either through translating Bozica’s Croatian responses or by herself.
109. I do not accept that Dr Joseph’s evidence demonstrated a decline in Bozica’s language skills. Consultations need to be carried out as efficiently as possible, and occurred because of an immediate medical issue needing treatment. Therefore, it might be expected that during a consultation, Bozica was not at her best, nor given time to engage in English. The major issue at the 2016 consultation before the will was Bozica’s depression, which as noted by Professor Peisah, may have reduced Bozica’s desire to engage orally.
110. Further, a December 2015 “patient information sheet” ostensibly signed by Bozica and prepared by Judy stated that Bozica’s language spoken was “Croatian – English”, which is consistent with Bozica being able to speak English in medical situations. The purpose of the sheet was not in evidence.
111. Based on those reasons and the findings above about Bozica’s English literacy in 2001, I find that Bozica could speak and read English sufficient to read and understand the 2016 will.

Drafting by Darryl

112. Darryl drafted the 2016 will, and he was the sole beneficiary.
113. However, as the 2016 will repeated a long-standing intention of Mato and Bozica, I do not accept that its creation rose was “suspicious”.
114. Darryl, Michelle and Darryl’s current wife, Zlata Velat, all gave evidence about the day on 3 July 2016 when Mato and Bozica signed the 2016 will. They all gave evidence that Judy was invited to attend, but did not. Judy denied she knew about the meeting. At the time, there was no suggestion that the siblings’ relationship was anything other than harmonious. I consider it highly unlikely that Judy was not told of the meeting and family meal scheduled for that day.
115. As noted above, Mato and Bozica gave Darryl instructions of the words to include in the document. Darryl took notes, but did not speak. He then typed up the document, and his parents read it and then signed it. As with the 2001 will, Darryl’s evidence was that his parents gave instructions in a combination of English and Croatian, and he transcribed the will in English. This was corroborated by Michelle, who further confirmed that her parents had no trouble reading the document.
116. I accept that Michelle and Zlata witnessed their signatures; they were not challenged on that evidence. Zlata’s evidence was that because Judy did not come, “the parents ask[ed] me ... to sign the document instead of her. So, I would say I was a random witness, just by chance.” Zlata did not give evidence of being present or conscious of the discussion about the document, as she was cooking the meal for the family.
117. Judy’s evidence was that she never saw the 2016 will until these proceedings. While I consider that unlikely, even if it was correct, Judy accepted that she organised to go to her parents’ home shortly after the date, on which they signed the will, but denied that was the purpose of the visit. I consider it more likely than not that she did see the will and had no issue with its contents, because her parents had communicated their intention to her previously. Further, Judy knew that her mother was interested in making a will, as recorded in Dr Joseph’s report in January 2016.
118. I consider her parents had a long-standing intention for Darryl to inherit their estates for the following reasons.
119. First, the 2001 will clearly provided that Darryl was intended to be the sole beneficiary, should he be alive at the time of his parents’ deaths. While not critical to the determination of Bozica’s intention, I consider it more likely than not that Judy was aware of the 2001 will. As indicated above, I have no doubt that Mato and Bozica wanted a will prepared before they left for overseas. As Judy was to be the only child remaining in Australia, I consider it more likely than not that her parents told her about the existence and location of that will.
120. Secondly, I also consider it likely that Bozica and Mato discussed their testamentary intentions with their children. As noted, the siblings appeared to get along, and their parents were kind and generous to them all. I do not consider they would have communicated their intentions to Michelle and Darryl, and not to Judy. This is consistent with Zlata’s unchallenged evidence, which I accept, that she understood that the siblings had agreed on the terms of the document: “... all three children were being in agreement with the parents in making this kind of document”.
121. Thirdly, the only non-family witness who spoke with Bozica about her estate was Ms Lauscaran, whose evidence was that during conversations she had with Bozica between about 2008 and 2012, Bozica wanted her Croatian assets to be passed to her children in equal shares. There was no evidence about any such assets being in existence at the time of the 2016 will or her death. In any event, those conversations were before the 2016 will, which only listed assets in Australia. Further, no non-family witness gave evidence about being aware of any gifts or assistance Mato and Bozica had provided during their lives, despite the siblings’ uniform evidence that they did receive such assistance. Therefore, I do not consider the conversations with Ms Lauscaran assist Judy’s case.
122. Fourthly, above I have found that the various explanations provided in the 2016 will were substantially accurate.
123. Fifthly, as noted above, in January 2016, Judy took Bozica to see Dr Joseph, who recorded at that time “There is no will that has been made.” However, it is not possible to know whether Bozica or Judy gave that information to Dr Joseph. Further, it was accurate that there was no formal will at the time, because the 2001 will had not been witnessed by two non-beneficiaries. I do not place weight on that statement by Dr Joseph, who obviously did not know the truth of it. There is no evidence that Darryl was aware of Dr Joseph’s advice at the time of suggesting a “neuropsych” assessment for testamentary capacity, nor that Judy progressed such an assessment.
124. Sixthly, another reason why Judy may have paid little attention to discussions about her parents’ estate, was because at no time before her mother’s death did Judy appear to have any interest in any inheritance. Her evidence was that she was very wealthy, with a childcare centre business and many properties.
125. This is consistent with her signing a “declaration” on 18 February 2021, with her signature witnessed by Darryl, and Judy witnessing Darryl’s signature. The declaration included:

Declaration

Regarding property of Mato Orec and Bozica Orec at 6 Hope Street ...

On [11 July 2016] ... we Michelle ... Orec, Judy ... Doric and Darryl ... Orec being the children of Mato and Bozica Orec met at [Michelle’s residence] in attendance was Zlata Velat.

The meeting was to discuss [our parents’] future care ... as their health was deteriorating and ... we ... must consider and decide on how to care for our parents.

Two considerations were discussed, the first that Darryl ... would be responsible for [our parents’ care] and when the time came that full time care was needed that Darryl ... would be reimbursed / subsidised by Michelle ... and Judy ... to the amount of loss of wages.

The second consideration was that Darryl ... would be responsible for [the parents’ care] no reimbursement / subsidy would be made by Michelle ... nor Judy ... although all possible rights to inheritance from property at 6 Hope Street ... all contents at the address and any bank accounts and assets would not be contested nor made claim to by Michelle ... and Judy ..., rather Michelle ... and Judy ... renounce all and any such claims in favour of Darryl ...

The purpose of this declaration is to formalise and declare that such agreement has been reached and agreed to.

[Dated 18 and 19 February 2021, signed with a witness by Judy, Michelle and Darryl]

126. The declaration was the subject of various submissions. Darryl originally pleaded that it gave rise to an “equitable estoppel”, but when, in closing submissions, Darryl’s counsel was asked about the nature of the estoppel, the allegation of estoppel was withdrawn and an oral application was made for leave to amend the pleading to add a claim that the declaration amounted to a contract, which Judy had breached. That late application was refused with reasons given in a separate judgment.
127. Nevertheless, I consider the declaration is an important document in relation to Judy’s credit. In February 2021, Judy was prepared to place her signature on that document with the formality of the signatures being witnessed. Her evidence surrounding signing it was inconsistent.
128. In an earlier affidavit, Judy stated that Darryl commenced reading the declaration to her to the effect that she was giving to him her inheritance of their parents’ home and contents, and she was “shocked that he also wanted the contents [of the house], as I wanted some of my mother’s personal belongings as a memory of my mother”. She claimed that, upon an oral assurance that Darryl would allow her to have those memorabilia, she signed the document without reading it. She claimed that she was “very vulnerable and sensitive” because of an operation on an aneurysm in May 2020.
129. In a later affidavit, Judy’s evidence was that Darryl raised with her his concerns about Michelle’s (unidentified) attitude to their parents’ estates. He then asked Judy whether she would be “willing to sign your share [of Bozica’s estate] over to me”. Judy immediately responded, “Sure” and then signed the declaration, without reading it because she did not have her glasses.
130. However, I do not accept Judy’s evidence accurately recorded what occurred. On its face, the document contained many more words than those she claims Darryl read her, and also left space for Michelle’s signature. Had Darryl been concerned about Michelle, then it would make no sense that Michelle would sign a document concerning only Judy’s entitlement. Those features would have been apparent, even if she could not read the detail. Further, the sentiment in the declaration concerning her entitlement to any inheritance was in accordance with her then-wishes.
131. I find that Judy knew the details in the declaration she was signing. I do not accept that she was vulnerable, such that she could not understand, or that Darryl placed any pressure on her to sign. Again, at that time, there was no evidence that the siblings’ relationship was anything other than harmonious. For example, Judy’s daughter, Daniella, considered it was.
132. As to the contents of the 2021 declaration, I consider it accurate or close to accurate.
133. I accept that at some point, likely to have been in 2016, whether or not it was 11 July, the siblings met and discussed the future care needs of their parents, as recorded in the first two paragraphs of the declaration. There is no doubt that the siblings were united on an intention to have their parents remain in their home until their deaths. Further, there is no doubt that neither Judy nor Michelle offered to live in the home to provide daily care. By 2021, the siblings knew that Darryl had obtained a carer’s pension, and therefore he was the full time carer of his parents.
134. Darryl gave unchallenged evidence that he had a conversation with Zlata, who assisted in caring for Mato and Bozica, and that Zlata said “I remember you told me that [Judy and Michelle] aren’t helping care for your parents because they know you are getting the house when they die”. Zlata was also not challenged on such a conversation having taken place and I accept it.
135. While the declaration speaks of “two considerations” having been discussed, namely Darryl caring for his parents and then either receiving a wage subsidy from his sisters or receiving the whole of his parents’ estate, I do not consider that it matters. On balance, I prefer Darryl and Michelle’s evidence concerning the agreement about their parents’ care. However, there is no requirement to determine its legal effect, as it does not form the basis of any cause of action.
136. Therefore, I consider that Bozica had an ongoing intention to leave her estate to Darryl, which was known to the siblings. Further, I consider Darryl has proved that Bozica was of a “sound disposing mind”, despite Darryl preparing the 2016 will and being present when it was signed.

Conclusion on capacity

137. Dealing with each of the elements of testamentary capacity, I consider on balance, based on the medical and other evidence discussed above, that in relation to the 2016 will:

(1) Bozica had an awareness and appreciation of the significance of the act of making a will.

(2) Bozica understood the nature and extent of her estate, namely that it consisted of her house and a small amount of money. It was not necessary for her to understand the exact value of the home: see eg Zorbas at [64]. However, her clear intention was that Darryl was to receive the home, in which he lived and into which he had contributed, notwithstanding that it was Bozica’s major asset.

(3) Bozica could recall, identify, evaluate and discriminate between the respective strengths of the claims of her children and others, who might reasonably have been thought to have a claim on her testamentary bounty. She clearly set out the gifts she had provided her children and how she assessed their value and the reasons for leaving her estate to Darryl.

(4) Bozica was not suffering any delusions or hallucinations that influenced her awareness of the facts or reasoning and decision-making ability.

138. Bozica was of a sound disposing mind; the circumstances in which the will was made did not create doubt about Bozica’s intention.
139. For the above reasons, I consider the 2016 will ought to be admitted to probate.

Darryl’s claim for additional provision

140. In the event that neither the 2001 nor 2016 will ought to be admitted to probate, Bozica’s estate would be dispersed according to the law of intestacy. Darryl would ordinarily be entitled to one third of Bozica’s estate, her estate being split evenly amongst her children: Succession Act s 127(3)(a). This would mean he would receive about $500,000, before factoring in the costs of this litigation, to the extent that those costs might be borne by Bozica’s estate.
141. Darryl claimed that if he was entitled to a third of Bozica’s estate, an order in his favour for further provision ought to be made pursuant to s 59 Succession Act. During closing submissions, Darryl’s counsel submitted that he ought to be entitled to $1.2 million from Bozica’s estate, that is, an additional $700,000 above his one-third entitlement. No explanation was provided for that quantum.
142. As Bozica’s son, Darryl is an eligible person, for whom an order can be made: Succession Act s 57(1)(c). While Darryl filed his claim for further provision out of time, Judy consented to the application having been made late: Succession Act s 58(2).
143. The Court can make a family provision order where it is satisfied, inter alia, that the operation of the intestacy rules in relation to the deceased’s estate would otherwise fail to provide adequate provision for Darryl’s proper maintenance, education or advancement in life: Succession Act s 59(1)(c). Regard may be had to the factors in s 60(2) Succession Act when considering whether to make an order for further provision.
144. In deciding to make an order for further provision, the Court must be satisfied that an evaluative standard has been met, rather than merely exercising a discretion: Durham v Durham [2011] NSWCA 62; (2011) 80 NSWLR 335 at [81] (Campbell JA).
145. Darryl bore the onus of justifying his claim for further provision: see eg Blendell v Blendell [2020] NSWCA 154 (Blendell) at [26]-[27] (Meagher, Gleeson and Leeming JJA). It was incumbent on him to disclose to the Court, as fully and frankly as possible, all material and financial circumstances as they were at or about the time of the hearing: DJ Singh v DH Singh [2018] NSWCA 30 at [284]- [291] (Gleeson JA, Leeming and White JJA agreeing). Incomplete or unsatisfactory evidence may permit the drawing of inferences unfavourable to an applicant for provision. Where an applicant’s income and expenditure are not satisfactorily proved, with the result that the Court does not have a broad outline of their financial position, it may be impossible to conclude that such an applicant has been left with inadequate provision: Blendell at [28]-[29].
146. While the parent-child relationship changes over time, adult children do not cease to be a natural recipient of parental ties, affection or support. However, with respect to the moral obligation a parent owes to an adult child, it is not ordinarily expected that a parent should provide extensive financial support to their child into adulthood. There would be no general expectation, for example, to provide an adult child with an unencumbered house: Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 at [111] (Hallen AsJ), cited with approval in Chapple v Wilcox [2014] NSWCA 392 at [21] (Basten JA).
147. In circumstances where there is no spouse or other person to assist, and the adult child has been dependent upon the deceased parent, the community may expect provision to fulfil that ongoing dependency after death: Taylor v Farrugia [2009] NSWSC 801 (Taylor) at [58] (Brereton J). However, the extent to which a person is ‘dependent’ on another is a question of degree and fact, and any restrictive attempt to define the term would be inappropriate: Spata v Tumino [2018] NSWCA 17 at [71] (Payne JA, Macfarlan JA agreeing). I draw a distinction between dependency out of genuine need, such as in the case of a disabled adult or a minor child, and the case of an adult with the capacity to otherwise work, should they wish to: see eg Grover v NSW Trustee & Guardian [2015] NSWSC 1048 at [132] (Hallen J).

Application

148. I do not consider Darryl ought receive further provision for the following reasons.
149. Darryl adduced limited and unsatisfactory evidence in support of his claim for further provision. He did not provide meaningful evidence as to his future earning capacity. For example, while Darryl gave evidence that he had worked prior to 2017, and then again for a brief time in late 2022 before being injured at work, he did not identify beyond “rough figures” how much he was earning. Further, while Darryl expressed uncertainty about whether he could ever return to work given his “injuries and [his] age”, the documentation he provided only confirmed he lacked capacity to work until 10 March 2025. Darryl was receiving worker’s compensation at the time of the proceedings. He did not provide any evidence of medical documentation or diagnoses suggesting that he would be unable to return to work after 10 March 2025. Such evidence would be both known and accessible to Darryl and he ought to have led it in support of his claim.
150. Even assuming that Darryl would be unable to work in the future, it would not necessarily follow that further provision ought be ordered. Darryl is married to, and lives with, Zlata. I infer that Darryl’s financial and material circumstances were intertwined with those of Zlata, and the pair share the costs of living and support one another. Accordingly, Darryl ought to have adduced evidence of her financial circumstances: see eg Succession Act s 60(2); Stone v Stone [2019] NSWSC 233 at [155] and [169] (Hammerschlag J, as his Honour then was). Darryl’s evidence was that Zlata had assets in Croatia totalling $139,500, and that she received a weekly pension totalling $484. Zlata variously described herself as “unemployed” and a “pensioner”. At no time was it submitted, nor did the evidence suggest, that Zlata was unable to work. Even if I accepted that Darryl was unable to work in the future, the prime obligation to look after him would fall to Zlata, rather than Bozica’s estate: see eg Taylor at [58] (Brereton J).
151. Further, Darryl failed to adduce any evidence as to his life expectancy. While there was no express obligation to do so, in Megerditchian v Khatchadourian [2020] NSWCA 229 at [58] (Payne JA, Macfarlan JA and Emmett AJA agreeing), a claimant’s failure to adduce evidence about contingencies or their life expectancy resulted in the “true facts” being “hard to ascertain”. That is the case here.
152. Darryl adduced evidence that his anticipated weekly expenditure amounted to approximately $1,500. While unclear, it appears that this amount includes the costs, to some extent, of Darryl’s children, who were said to be dependent upon him. Darryl’s children are both adults, aged 19 and 21 respectively. They are in gainful employment as apprentices. Their mother, Gordana, gave evidence that both children were independent of Darryl, earning their own incomes and paying taxes. I consider Darryl’s choice to support his sons is not a necessity that is relevant to the question of further provision.
153. Darryl made no submissions that he lived with his parents because of a genuine need, and I do not accept he did so. Instead, he appeared to be living there voluntarily and contributed to the household and building.
154. However, it is also appropriate to consider the financial benefit Darryl received in the form of rent-free accommodation while his parents were alive: see eg Frank v Angell [2024] NSWCA 264 at [82] (Stern JA, Bell CJ and Gleeson JA agreeing). Darryl lived with his parents, without paying rent, for the vast majority of his adult life, to his benefit. The current value of living in the house based on Darryl’s evidence was $1,300 per week. He has received that benefit for many years.
155. Darryl adduced various evidence, much of which was unchallenged, to the effect that he had made various financial and non-financial contributions to his parents’ wellbeing and household over the course of their lives. I accept that Darryl contributed various sums to his parents’ benefit, including assisting with the costs of litigation concerning Bozica’s car accident and making improvements to her property. I further accept that Darryl provided Bozica care and support from 2017. However, the extent of Darryl’s contributions is just one factor in a holistic assessment of all the circumstances that may be considered under s 60(2) Succession Act: Burke v Burke [2015] NSWCA 195 at [124] (Emmett JA). Taken at its highest, I consider that the value of any contributions that Darryl made were outweighed by the benefits he received from his parents over the course of his adult life, particularly in the form of free accommodation.
156. Judy’s counsel submitted that Darryl’s conduct following Bozica’s death constituted “harassment” of Judy via Facebook and text message, being conduct subsequent to the deceased’s death that can and ought to be considered in determining Darryl’s claim, referring to s 60(2)(m) Succession Act. While I accept that Darryl’s Facebook posts were ill advised, I do not accept that they amounted to “harassment”. Darryl and Judy were evidently in dispute following their mother’s death, and the relationship between them deteriorated. I was not referred to any authority where similar conduct between siblings/beneficiaries after the deceased’s death has had any impact on an entitlement that otherwise existed. Conduct that goes as far as “toxic and threatening emails” sent by an applicant to a defendant could weigh against a claim: Re Gooley [2022] NSWSC 734 at [75]- [79] (Lindsay J). However, that conduct was in the context of an applicant with a background of illegal drug use and criminal offending, and emails that threatened family members. The present circumstances are not equivalent. In any event, irrespective of whether this conduct was disentitling, I do not accept that Darryl is entitled to further provision.
157. Based on the above, if it were necessary, I would decline to make an order under s 59 Succession Act.

Costs

158. While costs are in the discretion of the Court pursuant to s 98(1) Civil Procedure Act 2005 (NSW), the Court may make an order for costs of the proceedings to be paid out of the estate, in such a manner as it thinks fit: Succession Act s 99(1).
159. In recent years, there have been more than infrequent disproportionate legal costs charged in family provision proceedings. No assumption exists that such costs will be borne by a deceased’s estate: see eg Bassett v Bassett [2021] NSWCA 320 at [34]- [35] (Bell P, Leeming and Payne JJA agreeing); Practice Note SC Eq 07 at [41]. Further, it is often appropriate for the Court to make a fixed sum costs order pursuant to s 98(4)(c) Civil Procedure Act, in disputes between family members to avoid protracted disputes about costs.
160. I will accede to the parties’ request for time to consider these reasons and then to make submissions as to the appropriate costs and other orders finalising the proceedings.

Orders

161. The appropriate orders are:

(1) Direct the parties to confer and provide to chambers of Peden J within 7 days of these reasons agreed orders in relation to the following matters:

(a) Finalisation of the proceedings;

(b) The fixing of a specified gross sum instead of any assessed costs under Civil Procedure Act 2005 (NSW) s 98(4)(c); and

(c) Any other proposals to reduce the administration costs of the estate and to eliminate the incurring of any additional costs in these proceedings.

(2) If there is no agreement, each party is to provide to chambers of Peden J within 10 days of these reasons:

(a) Proposed final orders;

(b) Any affidavit concerning the appropriate costs order, including a fixed sum costs order;

(c) Submissions of no more than 3 pages in support of the final orders sought.

(3) If it is not appropriate to determine the final orders in chambers, the parties will be contacted for a listing date.

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