Allen v Kroll-Simmul [2005] NSWSC 453

New South Wales Supreme Court

CITATION : Allen v Kroll-Simmul [2005] NSWSC 453

HEARING DATE(S) : 19/04/05, 20/04/05, 21/04/05

JUDGMENT DATE : 17 May 2005

JUDGMENT OF : Gzell J

DECISION : Grant of probate in solemn form. Cross claim propounding statement of wishes dismissed.

CATCHWORDS : SUCCESSION - Wills, Probate and Administration - Probate and letters of administration - Probate in solemn form - Whether deceased lacked testamentary capacity - Earlier statement of wishes - Whether a testamentary disposition in terms of the Wills, Probate and Administration Act 1898, s 18A - No principles involved

LEGISLATION CITED : Wills, Probate and Administration Act 1898

Banks v Goodfellow (1870) LR 5 QB 549 CASES CITED : Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 In Re Devoy (1943) St R Qd 13

Graeme Royce Allen - Plaintiff PARTIES : Tiiu Kroll-Simmul - Defendant

FILE NUMBER(S) : SC 4649/03

Mr M Willmott SC - Plaintiff COUNSEL : Mr R Nair - Defendant

Champion Legal Solicitors SOLICITORS :

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 17 MAY 2005

4649/03 GRAEME ROYCE ALLEN v TIIU KROLL-SIMMUL JUDGMENT 1 Graeme Royce Allen propounds as the last will of Armilda Leesmae, late of Berala, New South Wales, a document dated 16 October 2001 naming him as executor and devising and bequeathing to him the entire estate of the deceased. Tiiu Kroll-Simmul opposed the grant of probate of the document on the ground that the deceased was not of sound mind, memory and understanding when she executed it. By her cross claim, Mrs Kroll-Simmul propounds a statement of wishes dated 15 February 2000. 2 As the estate of the deceased might pass to the Crown as bona vacantia, a citation to see proceedings issued to the New South Wales Treasury (Crown Asset and Liability Branch). The Crown Solicitor's Office responded that the New South Wales Treasury would accept whatever the court determined.

Background 3 Mrs Leesmae was of Estonian origin. She was born on 14 February 1915. She spoke broken English. 4 Mr Allen met Mrs Leesmae and her husband in 1993. Mr Leesmae was not well and Mr Allen agreed to mow their lawn and carry out odd jobs around the house. He did not charge for these services but Mrs Leesmae, whom he called Milly, insisted on giving him money to pay for the fuel. 5 Mr Leesmae died in August 1996. After his death, Mrs Leesmae lived alone in their house. She was cared for by Mr Allen and others. 6 Mrs Leesmae's sister lived nearby. After her husband's death she went into a nursing home and Mrs Leesmae asked Mr Allen to maintain the lawn and garden of that house as well. Mrs Leesmae's sister died in 1997. 7 Mrs Leesmae received a letter from the solicitors representing her sister's estate. She asked Mr Allen to explain it to her. Mr Allen contacted the solicitors and as a result advised Mrs Leesmae that she should see her own solicitor. 8 In 1998, Mr Allen began to take Mrs Leesmae to the bank, to shops, to the dentist and doctor as she needed more physical assistance. In mid 1999, a teller at her bank warned Mr Allen that individuals were making withdrawals from Mrs Leesmae's bank account, presenting cheques written in one handwriting that appeared to have been signed by Mrs Leesmae. The account was still in the name of Mr and Mrs Leesmae. 9 Mr Allen arranged a meeting with Allan Bernard Bolster, a solicitor. In light of the bank's concerns, he suggested a power of attorney. He explained what that entailed to Mrs Leesmae and asked her who she wanted to look after her affairs. She nominated Mr Allen. 10 Mrs Leesmae told Mr Bolster of her husband's death and that Mr Bolster's father had prepared her husband's will but she had not done anything about it. Mr Bolster arranged for probate to issue to Mrs Leesmae and for the house to be transmitted to her. Mr Bolster made contact with Mrs Leesmae by telephoning Mr Allen. Mrs Leesmae also told Mr Bolster that she had inherited a house from her sister, she had no relatives in Australia and while she had some relatives in Estonia, she had never met them. Mr Bolster advised her to make a will. 11 Mrs Leesmae had made a will in January 1968, on the same day as her husband executed his will. She appointed her husband executor and gave the entirety of her estate to him. In late 1999 or early 2000, Mr Bolster pointed out to Mrs Leesmae that she owned two houses and should make a will as her 1968 will left the whole estate to her husband and there was no provision in it for his death. He said since she had no relatives in Australia and only relatives in Estonia there would be a problem with her estate if she died without a new will. Mrs Leesmae said she would think about it. 12 Mr Allen became involved in Mrs Leesmae's financial affairs once the power of attorney was executed. Mrs Leesmae gave him various accounts and asked him to pay them. 13 In early 2000, when Mr Bolster suggested that Mrs Leesmae execute a new will, Mr Allen's recollection was that Mrs Leesmae said she was not ready but she would think about it. Mrs Leesmae had a dislike for signing documents. A distant relative of hers, Hans Mihkelson, was asked by the solicitor for her sister's estate to assist as he was having difficulty getting Mrs Leesmae to sign any documents, even the transfer of the house to her name. Mr Mihkelson spoke with Mrs Leesmae who said she was not going to sign any document no matter what it was. His later suggestion that she make a will was also rejected. 14 Mr Allen went away for three to four weeks. He returned on 1 August 2000 to be told by a neighbour that Mrs Leesmae was in Auburn Hospital. He went straight there. 15 Neighbours had called the police and the ambulance when they saw Mrs Leesmae roaming the streets calling out and not making sense and generally behaving strangely. The hospital contacted Mrs Kroll-Simmul and asked her to come and interpret. Mrs Leesmae told her she was hearing voices and was getting married. 16 Mrs Leesmae had been taking large quantities of valium prior to her admission to hospital. Mr Allen was concerned and questioned her doctor who ceased to prescribe valium about six weeks before her admission to hospital. She had very large ulcers on both legs for which she refused any treatment apart from analgesics. 17 Dr Thomas, a consultant psychiatrist specialising in the psychiatry of old age, recorded what he called an impression in the hospital records: "?delirium/psychosis 20dary withdrawal/dementia ?post traumatic stress disorder." 18 Dr Sydney Ernest Williams analysed the hospital records. He said that placing a question mark before a diagnosis usually meant a possibility or a query – something to be considered, but not definite. Soon after admission she was treated with high dosage valium. The nursing staff reported that while still confused, Mrs Leesmae improved after admission. 19 On 18 August 2000, Mrs Leesmae was transferred to the aged care psychiatry and neurosciences unit at St Joseph's Hospital where she remained until 17 November 2000, with one re-admission to Auburn hospital with a heart attack. Breast cancer diagnosed while there, was treated with drugs only. From St Joseph's hospital Mrs Leesmae was transferred to Kaloola Nursing Home and, almost immediately, to Berala Nursing Home where she remained until her death on 18 December 2002. 20 On 6 October 2000, Richard Byrne, a social worker, made an application to the Guardianship Tribunal for the appointment of a guardian and financial manager for Mrs Leesmae. Mr Allen was served with the papers. He contacted Mr Mihkelson. 21 When Mr Allen went to Mrs Leesmae's house after she had been admitted to Auburn hospital, he found it in a mess. He spent a lot of time and effort in tidying the house both externally and internally. Mrs Mihkelson was impressed and communicated this to Mr Mihkelson who was happy to recommend to the Guardianship Tribunal that Mr Allen continue in his caring role. 22 Mr Mihkelson's view of Mr Allen subsequently changed. That may have been because Mr Allen did not inform him of Mrs Leesmae's death or the funeral arrangements. Mr Allen said the telephone number he had for Mr Mihkelson was an old one and he could not contact him. He asked the Estonian priest if he would let the community know of the funeral arrangements urgently. 23 On 14 December 2000, the Guardianship Tribunal noted that Mrs Leesmae had settled into Berala well, and all persons spoken to by the Tribunal agreed that Mrs Leesmae was well cared for and her accommodation was appropriate. There was no suggestion that she wanted to leave. The Tribunal was satisfied that there was no need to make a guardianship order. It was satisfied that there was a need to make a financial management order and appointed Mr Allen manager of the affairs of Mrs Leesmae subject to the direction and conditions of the Protective Commissioner.

The will 24 In early 2001, Mr Allen raised the question of a will with Mrs Leesmae again. He said that a conversation to the following effect took place: "Mr Bolster discussed with you last year the need for a will. What do you want to happen to your doggie and your houses when you are in heaven?" Milly did not answer me. "Do you want to leave your houses to the church? Or to the RSPCA? Or to another charity?" "No, no, no. No church. No charity. No government. You can look after my houses and my doggie." "What about someone else? What about your good friends who ring you on the telephone. What about Hans and Inda?" "No, no. They have not come to visit me. They have not cared for me. They are not my friends. You have been the only one who has cared for me and helped me every day and looked after my doggie. I want you to continue to care for me and my doggie, and look after my houses." "Yes, I promise. I have done it for many years and I will continue to do it. But when you go to heaven you can't say what you want, so unless you have a will to say what you want, it will go to the government." "No, no government. You are to look after my houses and my doggie forever." "I am honoured that you have chosen me and want me to look after your houses and doggie when you are in heaven, but, are you sure there is nobody else you want to leave anything to." "No. Only you. Nobody else." "That is good that you know what you want, but because you do not have a will, nobody else will know what you want." "I have already told Mr Bolster what I want to happen." "Yes, you have told him but if you want your wishes to happen you must put them in writing, that is called doing a will. Mr Bolster can do it for you when you are ready, like his father did many years ago for you and your husband." "I will think about it." 25 Mr Mihkelson had not visited Mrs Leesmae nor had she visited him after her husband died. Mrs Leesmae spoke with Mrs Mihkelson on the telephone, quite often weekly. 26 Later, Mrs Leesmae told Mr Allen that she wanted to speak to Mr Bolster about her will and he arranged an appointment. 27 Mr Allen's recollection was that he told Mr Bolster what Mrs Leesmae wanted in her will, he received a draft from Mr Bolster that he explained to Mrs Leesmae and he then took her to Mr Bolster to engross the will. Mr Bolster's recollection was that he received a telephone call from Mr Allen: "Mum has told me that she wants to make a new will and appoint me as executor and sole beneficiary." Mr Allen addressed Mrs Leesmae as his mother on occasions. Mr Bolster said he would prepare the will but he would have to take instructions directly from Mrs Leesmae. His recollection was that he prepared the will in accordance with his conversation with Mr Allen and took instructions from Mrs Leesmae when she came to engross it. 28 I do not place any significance upon this diversion in the evidence. Recollections will differ as time goes on. 29 Mr Allen took Mrs Leesmae to Mr Bolster's office on 16 October 2001. Mr Bolster requested Mr Allen to remain in the waiting room and asked Mrs Leesmae to come to his office so that he could get her instructions. Mr Bolster recounted to Mrs Leesmae that Mr Allen had telephoned him and told him that she wanted to make a new will and gave details. He asked her whether she wished to make a new will. Mrs Leesmae responded in the affirmative. He said: "I have prepared a will based on the information Graeme passed on for you. In the will you appoint Graeme Allen as the executor. That means that he will be the person to go to the solicitor and look after your estate is that what you want?"

Mrs Leesmae replied in the affirmative. Mr Bolster then said: "In this will you are going to give him everything, both houses and whatever you may have. Everything will go to Graeme."

Mrs Leesmae responded: "Yes, that's right."

Mr Bolster said: "There is a lot of money in the estate with the value of the two houses and everything else, are you sure you do not want to share it with relatives in Estonia?"

Mrs Leesmae replied: "No, Graeme is the only one who has helped me."

Mr Bolster then said: "Ok. I will have to get my secretary to come in and witness it."

When his secretary came into the room he said: "Mrs Leesmae. I have gone through your will with you do you wish to sign the will now?"

Mrs Leesmae replied in the affirmative. Mr Bolster saw her sign the will without any assistance and he and his secretary then signed as witnesses. 30 The witness was a junior secretary who subsequently left the employment of Mr Bolster and he was unable to contact her. 31 Mr Bolster said that he felt at the time that the answers Mrs Leesmae gave were such that she knew what she was signing and what would happen to her property on death. He knew she was in a nursing home and had health problems. He knew she had been in hospital. He went slowly through the will with her. From his experience as a solicitor he formed the view that Mrs Leesmae's responses indicated that she understood what she was doing and what she wanted. Mr Bolster also formed the opinion that she was well aware of what her assets were and who she wanted to give them to. He said her responses were alert and immediate. He noticed that she had deteriorated physically since January of the previous year. She needed to be helped to get in and out of the chair and to walk. However, he did not feel that she had deteriorated mentally during that period. She was always reticent in her language, but she was clear in what she wanted.

The visitors 32 Mr Mihkelson visited Mrs Leesmae several times when she was in St Joseph's hospital on his return to Sydney in October 2000. She said she wanted to go home. She told Mr Mihkelson that she had many suitors, she was still young and good looking and desirable for marriage and she was more valuable for marriage because she had two houses. She said that Mr Allen was going to divorce his wife to marry her and she had another suitor. 33 Mr Mihkelson last saw Mrs Leesmae on 16 February 2002. He had also visited her on 11 January 2001 and three or four times in between. Each visit was short. She spoke in a very loud voice in Estonian. She ceased to say she wanted to go home and she ceased to mention marriage. 34 In 1999, The solicitor looking after Mrs Leesmae's sister's estate telephoned Mrs Kroll-Simmul and said he had difficulty speaking with Mrs Leesmae in relation to the transfer of the title of her sister's house to her. Mrs Kroll-Simmul had a conversation with Mrs Leesmae suggesting that she should make a will. Mrs Leesmae refused complaining that every one was badgering her to make a will. When Mrs Kroll-Simmul said that if she did not make a will her properties would go to the State, Mrs Leesmae replied that the country had been good to her and she did not care if the government got her property. She said she would not make a will because every one she knew who made a will died: "My husband made a will and he died. My sister made a will and she died." 35 Lesley Lynch was a neighbour and friend of Mrs Leesmae. She had urged Mrs Leesmae to make a will, but Mrs Leesmae refused. Mrs Lynch was in constant contact with Mrs Leesmae. About a month before Mrs Leesmae went to hospital she began to speak to Mrs Lynch in Estonian. When Mrs Lynch visited Mrs Leesmae in Auburn Hospital and then St Joseph's hospital, Mrs Leesmae recognised her on some occasions and on others talked a lot of gibberish and made no sense. 36 In early 2001, when Mrs Lynch visited Mrs Leesmae she was talking very loudly and making funny sounds and said she was going to marry Mrs Lynch's husband and another neighbour. In June 2001, Mrs Leesmae did not seem to know Mrs Lynch and made no sense in what she said. Mrs Lynch did not stay long as Mrs Leesmae was upsetting other patients. These were the only occasions Mrs Lynch visited Mrs Leesmae at Berala. 37 There is no doubt from the hospital records that Mrs Leesmae was factious at various times and upset other patients. But the observations of Mrs Lynch while establishing a pattern of behaviour, are remote from the date upon which the challenged will was executed. 38 Aino Nixon-Sinilaid visited Mrs Leesmae at Berala in early December 2000. Mrs Leesmae was wearing bright red lipstick, speaking loudly in Estonian and seemed to be looking for something or someone around her bed. She said: "He has to be somewhere. But I have another one, too. I am going to get married". There was nobody at her bedside. In mid 2001, Mrs Nixon-Sinilaid visited her again and observed Mrs Leesmae speaking loudly and incomprehensively in Estonian. Mrs Nixon-Sinilaid said she visited Mrs Leesmae on other occasions but only recalled these two incidents. 39 Linda Aavik was a friend of Mrs Leesmae and a member of the Estonian community. In June 1999, when Mrs Aavik was going to Estonia, Mrs Leesmae gave her a very youthful photograph of herself, she looked about 25, and asked Mrs Aavik to try to find her a husband. 40 Mrs Aavik visited Mrs Leesmae at Berala on 26 May 2001. She said Mrs Leesmae made noises like a white cockatoo and screeched. She subsequently seemed happy to see Mrs Aavik and they had a conversation. She said she could remarry but Mr Allen was going to divorce his wife and marry her: "He combed my hair". Mrs Leesmae had very little hair left at that stage. 41 All of these observations are of little assistance in assessing the testamentary capacity of Mrs Leesmae on 16 October 2001.

Testamentary capacity 42 In the leading case of Banks v Goodfellow (1870) LR 5 QB 549 at 565, Cockburn CJ said: "It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made". 43 Sidney Ernest Williams is a consultant psychiatrist with particular expertise in aged care psychiatry and neuropsychiatry. He had not examined Mrs Leesmae. He expressed an opinion based upon the hospital records and the affidavits filed in the proceedings. 44 Dr Williams said it was difficult to provide a simple coherent diagnosis, but, probably, the diagnosis made by Dr Thomas of dementia, Alzheimer's with secondary delusional disorder was the most satisfactory, although there may also have been some more acute disorder such as delirium or acute schizophrenia. Dr Thomas had written this diagnosis on Mrs Leesmae's discharge from St Joseph's hospital. Dr Williams agreed that it was not definitive. There was no record of any assessment of dementia in the hospital records. 45 In addition to the impression of Dr Thomas on the admission of Mrs Leesmae and Dr Thomas' entry on her discharge papers, Dr Williams thought that Mrs Leesmae was experiencing cognitive impairment for some time before her admission to Auburn hospital explaining her apparent increasing dependence on others during that period to assist with shopping, dealing with finances, managing her own health and medications and managing her own home. 46 Mrs Leemae's ideas about being married again, or going to be married, could fall, diagnostically, into a category of psychotic disorder. 47 Dr Williams said that at the time of her admission to Auburn hospital, Mrs Leesmae was quite out of touch with reality, delusional, possibly hallucinating and confused. He said this could have been due to a delirium and it may have been associated either with excessive sedative, and possibly analgesic, medication or with their withdrawal. 48 Dr Williams said the notes at Berala did not suggest any dramatic improvement in Mrs Leesmae's condition and that she had been suffering from significant cognitive impairment for some time before admission to hospital in August 2000. 49 In cross-examination, Dr Williams agreed that sudden reduction in excessive valium intake could have caused delirium and that her symptoms on her initial admission could be attributed to that cause. She was put on replacement valium in hospital and settled. 50 Dr Williams accepted that a person suffering from hallucinations or delusions might still have unimpaired cognitive functions in other respects. 51 Dr Williams accepted that on the balance of probability, Mrs Leesmae understood the document she signed as a testamentary document and on the probabilities she had a general understanding of her assets and their general value. But Dr Williams was of the view that her cognitive impairment more probably than not compromised Mrs Leesmae's capacity to be aware of those who might reasonably have been thought to have a claim upon her testamentary capacity. In this respect Dr Williams placed emphasis upon the proposition that if a person could not manage day to day things at home, it was very unlikely that the person would be able to manage more complex matters. 52 Mrs Leesmae did not have a large range of persons who might reasonably have been thought to have a claim upon her testamentary bounty. And she had considered those who did in discussion with Mr Allen in early 2001 in the conversation set out above. 53 If Mrs Leesmae understood she was executing a will, understood the nature of her assets and their value and had been guided into considering possible calls upon her bounty, I find it difficult to accept Dr Williams' view that she lacked the cognitive ability properly to consider those who might have a claim upon her testamentary bounty. 54 Dr Williams' emphasis upon Mrs Leesmae's inability to deal with day to day events and the state of her house before her admission to Auburn hospital gives little weight to his acceptance of the proposition that those matters were explicable in terms of sudden withdrawal of large doses of valium. 55 Mr Bolster was a solicitor of some 30 years experience when he went through Mrs Leesmae's will with her. He had the advantage, that Dr Williams did not, of contact with her. I prefer his evidence of her mental capacity at the time she executed her will. 56 The fact that Mr Allen was appointed the manager of Mrs Leesmae's estate does not establish a lack of testamentary capacity (Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377). 57 In my view, Mrs Kroll-Simmul has failed in her contention that the will should not be admitted to probate because Mrs Leesmae lacked testamentary capacity.

The statement of intentions 58 In view of these findings, it is unnecessary to consider the earlier document propounded by Mrs Kroll-Simmul because the will revoked earlier testamentary dispositions. In case I be wrong in my view, however, I set out the evidence relevant to this issue. 59 Mrs Kroll-Simmul met Mrs Leesmae in the mid 1960s. In 1997 Mrs Kroll-Simmul's husband left her. Mrs Leesmae telephoned to commiserate with her. 60 Ms Lynch said that on one occasion Mrs Leesmae said she was concerned about Mrs Kroll-Simmul's husband leaving her and her financial problems and wished to help. 61 In 1997, Mrs Leesmae told Mrs Aavik that she was concerned about the financial difficulties of Mrs Kroll-Simmul since her husband had left. She mentioned that she might live in her sister's house. 62 In early 1998 Mrs Kroll-Simmul began to visit Mrs Leesmae on a regular basis and took her to visit doctors, the chemist, the dentist, the bank, post office and shops. 63 In late 1999, Mrs Kroll-Simmul was in danger of losing her house. She told Mrs Leesmae. According to Mrs Kroll-Simmul, Mrs Leesmae said she could have her sister's house but not before she died. Mrs Kroll-Simmul said that Mrs Leesmae repeated this statement about Christmas 1999. 64 From late 1998 until mid 2000, Mrs Aavik had further conversations with Mrs Leesmae in which she said she would try to help Mrs Kroll-Simmul by leaving her her sister's house one day. Mrs Aavik said she should put it on paper in a testament otherwise Mrs Kroll-Simmul would not get it. Mrs Leesmae responded that she was not dying yet, so why should she make her last will and testament. 65 Mrs Aavik told Mrs Kroll-Simmul that Mrs Leesmae would like her to have the house. Mrs Kroll-Simmul responded that she could not have the house unless Mrs Leesmae put it on paper. 66 On 14 February 2000, Mrs Leesmae's birthday, Mrs Kroll-Simmul visited her and was told by Mr Leesmae that she was still going to give her her sister's house. Mrs Kroll-Simmul said that unless it was in writing, or in an official will, Mrs Leesmae might as well not keep saying that as it would not happen. According to Mrs Kroll-Simmul, Mrs Leesmae asked her to bring her typewriter to her house the next day. 67 Mrs Kroll-Simmul gave the following account of what happened on 15 February 2000. Mrs Leesmae told her she was going to put into writing the promises she had made regarding her sister's house. Mrs Kroll-Simmul said she should make a will with a solicitor as writing her wishes down was not like making a will. Mrs Leesmae refused, saying that putting her wishes in writing with a typewriter was good enough. Mrs Kroll-Simmul suggested that it should be called a statement. Mrs Leesmae said it should be a statement of her wishes. Mrs Leesmae said it should start "Dear sir" but Mrs Kroll-Simmul said it should be addressed "To whom it may concern". Mrs Leesmae agreed. 68 In her affidavit, Mrs Kroll-Simmul said that Mrs Leesmae dictated to her in broken English and Mrs Kroll-Simmul tidied up the words. She read the document back to Mrs Leesmae in both Estonian and English and asked whether that was what she wanted. Mrs Leesmae said "Yes". Mrs Kroll-Simmul said she needed two witnesses. Mrs Leesmae refused. Mrs Leesmae signed the document. 69 The document was in the following terms: "THIS IS THE STATEMENT OF MY WISHES TO WHOM IT MAY CONCERN My name is ARMILDE LEESMAE and my address 17 Campbell Hill Road, Guildford NSW 2161. I have several times promised to give my sister's house to my good and helpful friend Mrs. Tiiu Kroll-Simmul who lives at 15 Reid Drive, Chatswood NSW 2067 when I die. This house is close to me in my street at number 7 Campbell Hill Road, Guildford and was left to me when my sister Erna died. I now make this promise and my wish in writing. Mrs. Simmul is in great danger of losing her own house because she has to a big debt to pay and I want to help her because she has always come a long way to help me when I have needed her. I have also promised to give my property in my old homeland Estonia to my relative and old school friend Helmi Punmann and her relatives who live at Voru Street number 58 in Tartu, Estonia. I also make this promise and wish in writing now to Helmi and her relatives. I wish to give them my Estonian property when I die because life is very hard there and Helmi has been my lifelong friend. My own house at number 17 Campbell Hill Road, Guildford I wish to give to the person who will look after me most if I become very ill and need constant help in may ways. This may be Graeme (Allan) who has looked after my garden and he and his wife have also helped me a lot. They live very close to me at 16 Wellington Road and have a mobile telephone if I need help quickly. I do not wish to make an official Last Will and Testament for personal reasons but I want to make my promises and wishes in writing with this Statement. I ARMILDE LEESMAE of 17 Campbell Hill Road, Guildford NSW 2161 Telephone 9632-6311 Declare that I signed this Statement on 15th February 2000."

The document was signed at the bottom by Mrs Leesmae. 70 It was put to Mrs Kroll-Simmul that the information in the document was known to her, or could have been ascertained without resorting to Mrs Leesmae. Mrs Kroll-Simmul accepted that was so. 71 In cross-examination, Mrs Kroll-Simmul said for the first time that she made a draft in longhand first. When it was pointed out to her that she had not mentioned this in her affidavit, she said that if her former barrister did not ask her, she probably did not think of it. On a number of occasions she said that her former barrister did not have much time for her and set out a series of questions for her to answer or there were many things that the barrister had not put in her affidavit. 72 I formed an unfavourable opinion of Mrs Kroll-Simmul. She was ready to blame her former barrister when she mentioned matters in the witness box that were not contained in her affidavit. Central to her case, were the circumstances in which the statement of wishes signed by Mrs Leesmae was brought into existence. It is highly unlikely that her former barrister would not have questioned her closely about this matter. 73 Mrs Kroll-Simmul said she did not believe that the statement of wishes had any legal effect. Yet she stated she told Mrs Leesmae that if she did not write down to whom she wanted her house to go, it would go to the government. Faced with this dilemma, Mrs Kroll-Simmul said for the first time that her belief that the statement in writing had no legal effect was based on her belief that if there were no witnesses to the statement, it was without legal effect. I was not impressed by this glib response. 74 In her affidavit, Mrs Aavik said that a couple of days after Mrs Leesmae's birthday on 14 February 2000, Mrs Leesmae told her that she had finally put it in writing that she would give her sister's house to Mrs Kroll-Simmul when she died. In cross-examination, Mrs Aavik said that was incorrect. What Mrs Leesmae had said was: "At last I put it on paper so she can move in if she would like to". Mrs Leesmae did not say she could move in when she died, rather Mrs Kroll-Simmul could move in before she died. 75 Mr Allen swore an affidavit in reply to that of Mrs Kroll-Simmul. He said that on 15 February 2000 at about 5.45 pm, Mrs Leesmae telephoned him to say that Mrs Kroll-Simmul had been in the house all day and she would not leave. She wanted Mrs Leesmae to sign a piece of paper but Mrs Leesmae did not want to sign and she would not leave until it was signed. 76 Mr Allen's version of events was that he went to Mrs Leesmae's house. Mrs Kroll-Simmul had left. He asked Mrs Leesmae what was the piece of paper that Mrs Kroll-Simmul wanted her to sign. Mrs Leesmae would not look at him. She said: "She has gone now don't worry about the piece of paper". Mr Allen asked if she had signed it. Mrs Leesmae replied: "I think I did something terrible. I am very ashamed. You did not want me to do it. She would not leave". Mrs Leesmae said she did not ever want to see Mrs Kroll-Simmul again. She was no good. She was greedy and Mrs Leesmae did not like her anymore. 77 Mr Allen said that a few weeks before this incident he had spoken with Mrs Kroll-Simmul who admitted that she had been asking Mrs Leesmae if she could live with her or live in her sister's house, but Mrs Leesmae refused. She gave Mrs Kroll-Simmul a couple of hundred dollars. Mrs Kroll-Simmul took the money because she said she needed it. Mr Allen said she was over-stepping the mark. 78 Were it necessary for me to decide whether the statement of wishes embodied the testamentary intention of Mrs Leesmae in terms of the Wills, Probate and Administration Act 1898, s 18A, I would have preferred the evidence of Mr Allen to that of Mrs Kroll-Simmul. I would have rejected the statement of wishes sought to be propounded by Mrs Kroll-Simmul. But it is unnecessary for me to determine that issue.

Mrs Kroll-Simmul's standing 79 It was submitted on behalf of Mr Allen that if Mrs Kroll-Simmul failed in propounding the statement of wishes, she lacked standing to contest Mrs Leesmae's testamentary capacity because she neither benefited under the will nor on an intestacy. 80 In In Re Devoy (1943) St R Qd 13, the court held that a person who had no interest under a testamentary instrument was not entitled either to require the will to be propounded in solemn form or to oppose a grant of probate. 81 In this case, however, there was before the court at the same time, Mr Allen's application for probate of the will in solemn form and Mrs Kroll-Simmul's cross claim for probate of the statement of wishes. Mrs Kroll-Simmul clearly had standing with respect to her cross claim. In order successfully to prosecute it, it was necessary for her to challenge the later testamentary disposition that revoked all former wills and testamentary dispositions. 82 In my view, Mrs Kroll-Simmul had the standing to challenge Mr Allen's propounding of the will.

Orders 83 I will grant an order that probate of the will in solemn form be granted to Mr Allen. I will dismiss the cross claim. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons.

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