Erez v Jooste-Jacobs [2026] QSC 143

SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO: DIVISION: PROCEEDING: ORIGINATING COURT: Erez v Jooste-Jacobs [2026] QSC 143 ADI EREZ (plaintiff) v NELE JOOSTE-JACOBS as Administrator of the Estate of the late ROOFIA SOLOUKI (defendant) SC No 11 of 2025 Trial Application Supreme Court DELIVERED ON: Ex tempore 27 May 2026 DELIVERED AT: Cairns HEARING DATES: 13, 14 October 2025; 11, 12, 13, 27 May 2026 JUDGE: Henry J ORDERS: 1. The plaintiff’s application, continued as if started by a claim, is dismissed. 2. The plaintiff will pay the defendant’s costs of and incidental to the application, continued as if started by a claim, to be assessed on the standard basis up to and including day 3 of the trial, and thereafter to be assessed on the indemnity basis. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – TESTAMENTARY CAPACITY – UNDUE INFLUENCE – where the plaintiff and her two sons began occupying the property owned by the deceased from early 2017 – where the deceased bequeathed the entirety of her estate to her son in her last will on 6 March 2020 and revoked all former testamentary acts – Where the deceased died on 15 August 2023 – where the Supreme Court granted the Administrator of the deceased’s will, letters of administration on 12 June 2024 – where the plaintiff was served with a notice to leave the property and refused to do so – where the plaintiff filed an application to set aside the grant and sought a declaration a previous will of the deceased’s from 2015 was in fact her last will – where the 2015 will bequeathed the entirety of the deceased’s estate to the plaintiff’s sons who are said to be princes descended from the rightful king of Iran from the -- 1 of 12 -- 2 Qajar dynasty – where the plaintiff alleged the 2020 will was a product of undue influence and the deceased lacked testamentary capacity at the time – where the defendant alleges the 2015 will was the product of undue influence – whether the deceased had cognitive capacity and was free of undue influence when making her 2020 will – where the costs were split on a standard basis for the first three days of the hearing and an indemnity basis for the remaining 3 days because of the plaintiff’s unreasonably slow conduct of the trial. Uniform Civil Procedure Rules 1999 (Qld) r 5, Banks v Goodfellow (1870) LR 5 QB 549, applied Hall v Hall (1868) LR1 P&D 481, cited Hastilow v Stobie (1865) LR1 P&D 64, cited Jeffrey v Jeffrey [2013] WTLR 1509, cited Vukotic v Vukotic [2013] 12 ASTLR 238, cited COUNSEL: Eyelander J for the plaintiff on 11 May 2026 Mercier MJ for the defendant SOLICITORS: Beacon Legal Advisors for the plaintiff on 13, 14 October 2025, 11 May 2026 The plaintiff appeared on her own behalf on 12, 13, 27 May 2026 Schweizer Kobras for the defendant [1] The deceased died on 15 August 2023, aged 93. The main asset of her estate is a suburban house at Smithfield, Cairns. The plaintiff, Ms Erez, came to be living with her two sons in that house in unusual circumstances from early 2017. As 2017 thereafter progressed, sham attempts were made by others to document the deceased’s sound mind and consent to Ms Erez and her children living there, and to then consolidate that position by discrediting the deceased as having thereafter become of unsound mind. In the ensuing years until her death, the deceased tried, unsuccessfully, to evict Ms Erez, who appears to have been living there free of rent. [2] The deceased’s last will, which revoked all former testamentary acts, was made on 6 March 2020. It bequeathed the entirety of her estate to her son, Saman Setoud, who resides overseas. It appointed Fereidoon Farzin as executor. However, he renounced his appointment, and the deceased’s son instructed solicitor Nele Jooste-Jacobs to apply for letters of administration on his behalf. The Supreme Court granted Mr Jooste-Jacobs letters of administration on 12 June 2024. He then arranged for the service of a notice to leave the estate’s Smithfield property on Ms Erez. Still, she did not leave. [3] Instead, remarkably, on 4 February 2025, Ms Erez filed an application seeking the setting aside of the grant of Ms Jooste-Jacobs and a declaration that the deceased’s last will was, in fact, an earlier will executed on 14 June 2015 – exhibit 2. That purported will appointed as executor and trustee, ‘The Sovereign Soltan Qeumars Shah Qajar by grace of God King of Iran.’ Its dispositive components read as follows: -- 2 of 12 -- 3 3. BY THIS WILL I DEVISE that my estate be administered as follows and hereby BEQUEATH all of my Real property and Personal property to His Royal Highness Prince Sinai Qajar, born 4 June 2014 and His Royal Highness Prince Elisha Qajar, born 4 June 2014, in equal shares. 4. IN THE EVENT that I still hold, in my Estate, an interest in the real property situated at 10 Rainy Mountain Place, Smithfield, in the State of Queensland, and described as Lot 37 of Registered Plan 857559, County of Nares, Parish of Smithfield, THEN I DIRECT my Executor to convey the title to the Sovereign name and Sirename, His Royal Highness Prince Sinai Qajar, born 4 June 2014 and His Royal Highness Prince Elisha Qajar, born 4 June 2014, for them to have and to hold in alodium with complete and absolute dominion as copareeners in common for their exclusive use, in equal shares, and to be held in TRUST, by their birth mother, Adi Erez, until they attain the age of 18 years. [4] The deceased deposed before her death that she had been misled and not known of that will’s content, and had, in any event, revoked any previous wills in executing her 2020 will. [5] The child beneficiaries in the 2015 will are Ms Erez’s twin sons. They were evidently referred to as ‘princes’ because their father, ‘Soheil’, who is also known as Qeumars, claims to be the rightful king of Iran from the Qajar dynasty. Whoever he may be, Soheil was not called as a witness, and his connection with others involved in the case remains unclear. Ms Erez appeared determined to avoid giving a straight answer when asked about the nature of her relationship with him. [6] The deceased had been led to believe her niece, Shahin Fard, was the mother of Soheil. Ms Fard denied this when called as a witness by Ms Erez. This lack of clarity is emblematic of a broader lack of clarity regarding the circumstances under which the deceased allegedly executed the 2015 will, curiously leaving her estate to Ms Erez’s children rather than her own son. [7] After Ms Erez filed her application, the court made orders that the proceeding continue as if started by a claim. The issue exposed by the ensuing exchange of pleadings is that Ms Erez alleges the 2020 will was a product of undue influence and made at a time when the deceased did not have testamentary capacity and did not know or approve of the contents of the will. Conversely, Ms Jooste-Jacobs denies those allegations, and alleges that, in fact, the 2015 will was a product of undue influence. [8] ‘Undue influence’ carries a different meaning in probate law than it does in equity. In probate law, the operation of undue influence as a disqualifier of a will’s validity requires it to be shown that the testator was coerced into making the will, or part of the will, that the testator did not wish to make. Mere proof of persuasion or influence will not suffice unless the quality of that persuasion and influence was coercive in the sense it prevented the testator from exercising a free will – Hall v Hall (1868) LR1 P&D 481, 482; Jeffrey v Jeffrey [2013] WTLR 1509 [238]. [9] The meaning of ‘testamentary capacity’ was addressed by the oft-cited observations of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, 565: -- 3 of 12 -- 4 It is essential to the exercise of such 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 delusions 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. [10] Even when a testator does not lack testamentary capacity, it remains a requirement of a will’s validity that the testator knew and approved the contents of the will – Hastilow v Stobie (1865) LR1 P&D 64, 68-69. This requires that the testator actually had knowledge of the substantive content of the will and approved of that content – Vukotic v Vukotic [2013] 12 ASTLR 238 [132]. [11] For the reasons which follow, I am satisfied there was no undue influence or want of capacity or understanding when the deceased made her 2020 will. In fact, the evidence demonstrates it was made in circumstances of due deliberation and support at a time after the deceased broke free of a web of bizarre influence which others had weaved over her affairs. The deceased deposed to that influence and deception prior to her death, particularly referring to the roles of her niece, Ms Fard, and a man called Glen Monaghan, who somehow came to hold the deceased’s enduring power of attorney. [12] The evidence of each of those persons in this trial was remarkable for their seeming ignorance of or lack of memory about events which they must have had a more active and knowing involvement in than they let on. [13] Ms Fard, who was Canberra based, and Mr Monaghan, who was living in Edmonton, each happened to have been represented in separate cases by a barrister, Mr Andrew Wrenn. Mr Wrenn also once acted for the deceased in a Family Court matter against her former husband. The deceased recalled she first met Mr Monaghan at Mr Wrenn’s house. Mr Wrenn could not recall the deceased having been at his house, but, in any event, Mr Monaghan recalled Mr Wrenn introduced him to the deceased after suggesting he come to her house at Smithfield in late 2014. Ms Erez also testified that she met the deceased at her house in December 2014, after being invited there for dinner. [14] Within less than a month of all this, Ms Erez’s case would have it that the deceased had miraculously decided to make a will leaving her house to Ms Erez’s two sons and to grant Mr Monaghan, a retired ship master, her enduring power of attorney. [15] The evidence of this is contained in a letter dated 5 January 2015 addressed to both Mr Monaghan and Mr Wrenn – exhibit 4. The letter relevantly stated: Dear Glen (1) I am in Canberra … -- 4 of 12 -- 5 (3) I met you and consider you to be honest and honourable person. Would you consider to be as my EPA in the enduring power of attorney, long form … (5) I am of sound mind, and I want as soon as possible, to make my last Will and Testament in revocation of all my former Wills and all Wills and testamentary disposition made by me. [16] The letter went on to say the deceased wanted to appoint ‘the Sovereign Soltan Qeumars Shah Qajar by Grace of God King of Iran’, as executor and trustee of her will. It also explained she wanted to bequeath her Smithfield home to Ms Erez’s two sons, adopting largely identical language to that which appears in the earlier quoted paragraph 4 of the 2015 will. A subsequent affidavit of the deceased explained her niece, Ms Fard, had placed documents in front of her to sign, explaining Mr Monaghan was going to assist her with her dispute with her former husband. [17] It will be recalled that the 2015 will was purportedly executed nine days later, on 14 January 2015. An enduring power of attorney, by which Mr Monaghan was appointed to act on the deceased’s behalf, was also allegedly executed on 14 January 2015. The 2015 will was purportedly witnessed by Mr Monaghan and a person called John Charles Benfield. The deceased deposed to having been unaware of executing the will or the enduring power of attorney. [18] Mr Monaghan’s recollection was that the deceased had turned up in early January with ‘her part of an EPA filled out, and a couple of other bits and pieces and asked me if I could supply a witness, which I did, and so I did it’. Mr Monaghan testified in cross-examination that he witnessed the will on the same occasion as signing the enduring power of attorney. [19] A statutory declaration from Mr Benfield was exhibited by Ms Erez today, day 6 of the trial. Its weight is qualified by the absence of the witness, and the obvious fact it was written for use in litigation. Its references to the deceased having legal knowledge and exhibiting understanding of the document’s legal implication do not dispel the suspicion raised by the rapid turn of events I have been describing. [20] Whoever drafted the will was evidently very keen to emphasise the royal lineage of Ms Erez’s two sons and how knowingly the will was made. Beyond the will writing that it was made of the deceased’s ‘own volition and being of sound mind’ it also asserted that the will represented the deceased’s ‘conscious directions’. [21] Moreover, whoever arranged for the execution of the will on 14 January 2015, assuming that was, indeed, the date on which it was executed, also arranged for a Justice of the Peace to, on the same date, certify that a copy of the will was a true copy of it (it was only a photocopy of a certified copy which was produced as evidence in this proceeding). Furthermore, the EPA of the same date was registered on the same date. Clearly, the rush was on to validate the existence of these documents. [22] Those curious aspects of themselves do not go close to bespeaking invalidity; however, they are certainly consistent with the subsequently deposed evidence of the deceased that she had been unaware of the existence of the content of the will and had not given instructions for its preparation. It is to be appreciated that while the -- 5 of 12 -- 6 deceased had some competency in English, it was not her first language, and her eyesight was poor, so that, according to her affidavit, she needed documents read to her to understand them. She was elderly. She was therefore an easier than average potential target to trick into signing documents without realising their true content. [23] For present purposes, it is sufficient to observe there are grounds to suspect the deceased did not understand the actual content of the 2015 will, not because of want of capacity, but because she may, in some way, have been misled about the nature of the document. [24] On Ms Erez’s case, there came a time in late 2016 when the deceased had travelled to Brisbane in connection with a court case, and thereafter travelled with her niece, Ms Fard, to Canberra, thus commencing a prolonged absence from her Smithfield home. This is said to have prompted a request for assistance from Ms Erez, initially in connection with a downed tree, soon culminating in Ms Erez’s occupation of the premises with her two sons. [25] While the deceased had apparently only departed from Cairns in late 2016 on a temporary basis, evidently only packing one suitcase, she did not return. On Ms Erez’s case, that is because the deceased ended up staying with her aunt, Ms Fard, in Canberra, at least until 2 August 2017, when she was admitted to Canberra Hospital. On Ms Erez’s case, the deceased stayed with her aunt for that prolonged period because she was tending to various legal disputes, and also seeking treatment for her vision problem. [26] According to the deceased’s subsequent affidavit, she was mistreated and subjected to controlling behaviour by her niece and her niece’s husband. An additional statement by the deceased exhibited to her affidavit made serious allegations of mistreatment of her when under the alleged control of her niece during this era. It is unnecessary to descend into detailed fact-finding about those allegations, about which Ms Fard represented she was mystified when giving evidence on behalf of Ms Erez’s case. [27] I emphasise I am quite alive to the possibility that the deceased’s later affidavit and statement may, in some respects, have exaggerated her niece’s behaviour. The deceased, for example, was not entirely housebound – she travelled to Brisbane and Melbourne in this era, and she must at times have been beyond the physical presence of her niece. The evidence also shows the deceased was able to pursue an array of disputes against other persons and entities. Nonetheless, the general tenor of the deceased’s later allegations is consistent with two objective areas of evidence that warrant highlighting. [28] Firstly, in the months subsequent to her departure, there came into existence a one- page document headed Request, addressed to Glen Monaghan, and stating: I, Roofia Solouki Shishavan of 10 Rainy Mountain Place, Smithfield in the State of Queensland, request from my attorney Mr Glen Monaghan, Registered E.P.A. No: 716257922 that until my WILL AND TESTAMENT dated 14 January 2015 comes into effect, my house and property at 10 Rainy Mountain Place, Smithfield in the State of Queensland, described as Lot 37 on Registered Plan 857559, County of Nares, Parish of Smithfield, be recorded and registered home and -- 6 of 12 -- 7 residential address of the two Sons of the Sovereign Soltan Qeumars Shah Qajar Emperor of Iran Head of Monarchy, His Royal Highness Prince Sinai Qajar, born 4 June 2014, and His Royal Highness Prince Elisha Qajar, born 4 June 2014, and their birth mother Adi Erez. I request that the property at 10 Rainy Mountain Place, Smithfield, Queensland 4878, at all time be recorded, The House of Prince Sinai Qajar and Prince Elisha Qajar. (Exhibit 3). [29] That document is purportedly signed by the deceased, with the signature consisting of the deceased’s handwritten first name followed by indecipherable scribble. There is also what appears to be a finger or thumbprint placed next to her signature. The typing and the request dates it as being 7 December 2016, yet next to the alleged signature, there appears the signature of one N Howell, described as a New South Wales JP, dated 18 April 2017. Lower down in the exhibited document, there appears a certificate of another JP dated 27 July 2017, certifying the copy to be a true copy of the original. [30] Ms Howell appears as the named witnessing JP on another document purportedly dated on 18 April 2017, namely, a supposed statutory declaration of the deceased. This document, again, only a certified copy of which was exhibited, was not signed by the deceased, but bears the smudge of someone’s fingerprint on the signature line. That document purports to amend the deceased’s enduring power of attorney to give Mr Monaghan ‘Total and Absolute Power and Authority for property matters, financial matters, personal care matters, health care matters, and to act for any matters immediately’. The statutory declaration went on to include a number of matters for Mr Monaghan to act in, most of which involved the pursuit of payments for damages, expenses or compensation. Notably, one of them involved a request for the damages and compensation to be paid to her niece ‘for care, nursing, expenses, and looking after me’. [31] The aforementioned witnessing of the request, effectively licensing the occupation of the deceased’s premises to Ms Erez and her two sons, in a document dated 7 December 2016 but not witnessed until 18 April 2017, coincides with the timing of the statutory declaration. The creation of the document was obviously influenced by someone who was concerned to bed down the control by others of the deceased’s residence and other potential financial assets. [32] This heralds the significance of the second evidentiary set of objective indica of suspected impropriety, namely, a sequence of attendances upon a medical practitioner to gather evidence about the soundness, and then the unsoundness, of the deceased’s mind. According to the affidavit of the deceased, these visits were arranged and controlled by her niece, Ms Fard. The medical practitioners visited were not called to give evidence, but copies of documents allegedly certified by them were exhibited. [33] Exhibit 27 is a letter dated 21 April 2017 from Dr Raya Al Suhel, certifying the deceased ‘is currently of sound and body’ [sic: the word ‘mind’ does not appear after the word ‘sound’]. Exhibit 7, page 45, is a further letter by Dr Raya Al Suhel dated 24 April 2017, certifying the deceased ‘is a patient of mine and she is currently of sound mind, and this is to certify that she clearly understand and signed fingerprint -- 7 of 12 -- 8 her statutory Decleration [sic] on 18/04/2017 which she made amendment to her Enduring Power of Attorney dated 14/01/2015 … and give unconditional and Absolute power and Authority to her E.P.A. attorney Mr. Glen Monaghan.’ [34] That the deceased was taken to that doctor for two visits within three days, on the second occasion obtaining a more detailed certificate, betrays an obvious concern to accredit the validity of the statutory declaration of 18 April 2017. No cogent innocent explanation for this chain of attendances was advanced in evidence. [35] Having gone to that trouble, to bed down the outward validity of the control which had been achieved of the deceased’s affairs, considerable trouble was then gone to, to attend upon a medical practitioner to establish that she had allegedly become cognitively impaired thereafter. Exhibit 7, page 44, is a letter dated 28 June 2017 from Dr Vishal Arya, of Queanbeyan GP Super Clinic, stating: I examined Ms Roofia Solouki Shishavan today who has severe cognitive impairment. I have been informed that Glen Monaghan holds current power of attorney for Ms Roofia Solouki Shishavan. [36] According to the deceased’s statement exhibited to her affidavit, it was her niece who took her to both the earlier appointments, as well as this latter appointment. Of this latter appointment, the deceased stated: Subsequently, around late June, Shahin took me to another doctor in the same clinic for yet another assessment. This time, before the appointment, my niece instructed me to refrain from responding to the doctor and to remain silent during the appointment. At the appointment, Dr Vishal Arya showed me a pen and asked “What is this”? When I attempted to answer the doctor’s questions I was kicked in the leg by my niece to keep me quiet. One of the parts of the examination included the doctor passing me a piece of paper requesting that I fold the paper. When I reached for the paper I received another kick from my niece so I withdrew my hand leaving the paper to fall to the floor. As a result, the doctor concluded that I had “severe cognitive impairment”. I believe by obtaining two conflicting assessments Shahin was using each assessment for her own purposes, trying to secure absolute power of attorney for Mr. Monaghan while disempowering me so that I would be unable to challenge their decisions regarding my affairs. [37] Things started to unravel for those controlling the deceased when she was admitted to Canberra Hospital on 2 August 2017. A striking feature of Ms Erez’s case is the extent to which it dwelled, often irrelevantly, upon earlier events and failed to confront the central problem for that case, presented by the evidence of what occurred after this point in time. It is as if, having convinced herself, or having been convinced by others, of the righteousness of her rent-free occupation of the deceased’s property for so long, she is unable to objectively confront the reality that whatever may have occurred before August 2017, the righteousness of her occupation fell apart and was contrary to the deceased’s wishes in the years following. [38] Subsequent to the deceased’s admission to hospital on 15 August 2017, Glen Monaghan emailed various persons asserting the deceased had been under medical treatment in Canberra since December 2016, and saying: -- 8 of 12 -- 9 Please be advised. Ms. Roofia Solouki-Shishavan is under Psychiatric care with severe cognitive impairment and is subject to making suicidal threats and serious threats to harm others. Please refrain from direct contact as this may result in Roofia becoming more volatile. Furthermore, Ms. Roofia Solouki-Shishavan is actually in debt for many thousands of dollars and possibly her life to her niece Mrs. Shahin FARD. (Exhibit 7, page 17.) [39] In fact, the evidence shows that a multidisciplinary team at Canberra Hospital went to considerable trouble to assess the deceased’s capacity, including using an interpreter. For example, on 24 August 2017, Dr Thu, a staff specialist in geriatric medicine at Canberra Hospital, wrote to another doctor: This is to let you know that in my professional opinion Roofia Solouki Shishavan has capacity to make decisions for her finance, accommodation and health … Currently she is admitted in Canberra Hospital since 2nd of August 2017. She has been assessed by our geriatric multidisciplinary team, a Psychiatrist and myself. I had opportunity to observe her in the hospital as well as interviewed her with interpreters. Her recent MMSE on 24/8/2017 revealed 20/22 … which suggests possibly she does have mild cognitive impairment. (Exhibit 7, page 42.) [40] The deceased’s statement exhibited to her affidavit explains that when in hospital, she had come to realise her niece ‘had complete control over my life, to the extent that I could not even speak to anyone without her presence or permission’. It was at that point, the deceased stated, that she decided to ask one of the nurses to contact a friend of hers and request the hospital to arrange, through Legal Aid, for a lawyer to attend upon her. This culminated in a letter of 15 September 2017, written by a lawyer acting on behalf of the deceased to Mr Monaghan, requesting the return of the deceased’s passport, citizenship documents and other personal property. (exhibit 7, page 39). [41] Then on 20 September 2017, the deceased executed a new enduring power of attorney, appointing Fereidoon Farzin as her attorney (exhibit 7, page 1). [42] Those who had been controlling the deceased’s existence had one last attempt to maintain that control, with an application being made by Mr Monaghan to QCAT for a declaration regarding the deceased’s capacity being dismissed on 15 February 2018. An unsuccessful appeal of that decision followed. It appears at least likely that the looming application may have prompted the gathering of some evidence on the deceased’s behalf about her continuing mental competence. [43] On 27 November 2017, Dr Vishal Arya certified he had on that date examined the deceased and stated: In my opinion she has mild cognitive impairment but she has capacity to make decisions for her finances, accommodation and health. -- 9 of 12 -- 10 I agree with the findings and recommendations from Dr Kyaw Thu. (Exhibit 7, page 43.) [44] The deceased continued to, from time to time, attend upon Dr Thu, the staff specialist in geriatric medicine at Canberra Health Services. She visited him on 26 June 2019 (exhibit 41). Further, she also visited him on 19 December 2019 (exhibit 7, page 14). In his ensuing letter to another doctor of 16 January 2020, he noted, ‘A RUDAS was completed - 26/27, which is very good, normal cognition … She has good cognition for her age.’ [45] It was subsequent to this, on 6 March 2020, that the deceased made her final will, leaving her estate to her son (exhibit 9). The evidence shows that even two years after that, there were no medical concerns held as to her cognitive capacity, with Dr Thu writing on 15 November 2022 of his assessment of the deceased on 27 October 2022: Roofia is a 92 years old, pleasant elderly NESB from Iran, legally blind and mild cognitive impairment, RUDAS 24/25… From a cognitive point of view, she remains stable and I did not have any concerns with her cognitive capacity. (Exhibit 9, exhibit C within it.) [46] Something was impliedly made of the fact the deceased’s new attorney was present for medical consultations and that there is no evidence the interpreter used was a NAATI-approved interpreter. None of this remotely excites suspicion as to potential undue influence or want of understanding. There is no reason to infer the attorney was other than supportive and that the interpreter was other than competent. One might reasonably have expected Dr Thu to have indicated there were problems in that regard had there been. [47] The foregoing analysis demonstrates there has been a failure to prove the pleaded allegation that at the time of executing the new will, the deceased was not of sound mind, memory or understanding. Ironically, it was the behaviour of those who had sought to take control of the deceased’s property and finances which prompted the chain of events resulting in objective expert assessments being made beyond their influence, assessments which do not help Ms Erez’s case. It would be difficult to do better in demonstrating the deceased’s requisite mental capacity to make a will than the repeated expert assessments with aid of an interpreter of an expert geriatrician in the form of Dr Thu, opinions given over a prolonged period of time. [48] While in my view it was unnecessary in defence of the misconceived case of Ms Erez, the defence nonetheless adduced expert evidence from Dr Bruce Brew, a neurology professor (exhibit 13). He reviewed the medical materials, resulting in him opining that the deceased did have testamentary capacity on the date that she made her will. He explained that to the extent she had only mild cognitive impairment, it was not sufficient to have impaired her testamentary capacity. Moreover, he opined that her non-English background and legal blindness likely meant she would have underperformed in her RUDAS scores, which were, in any event, either normal or just below the cut-off for normal. He expressly disagreed with the suggestion that Ms Solouki had severe cognitive impairment in 2017. [49] Ms Erez adduced a report from local consultant psychiatrist Dr Lindsay Martin. Her evidence is of no material relevance in the case for a number of reasons. -- 10 of 12 -- 11 [50] Firstly, it was seemingly the product of request by a lawyer who did not seek an appropriately targeted report. I pause to observe it was not appropriate for that lawyer in seeking a doctor’s report to say, as he did in the covering email (exhibit 25) – ‘I do not want a mother and two children kicked out of their house.’ Dr Martin’s report is merely targeted at explaining what she opines is a generally accepted standard for assessment of cognitive function. Unlike Dr Brew’s evidence, her evidence involves no expression of opinion as to the deceased’s actual capacity at the time of making the will. [51] Secondly, her report asserts of Dr Thu’s assessment of 27 October 2022 that, ‘In the absence of this generally accepted standard – then one must determine Dr Thu’s report is insufficient for evidentiary purposes’. Her report does not provide the foundation for that assertion. [52] Its premise seems to be that the document from Dr Thu was a report, although, to be clear, it was a letter from Dr Thu to a local doctor, presumably the deceased’s general practitioner. It will be recalled, that letter outlines what occurred when the deceased attended for examination upon Dr Thu. I have only quoted from some of its content earlier in these reasons. It is quite obvious from its content that the attendance was not some once-off attendance to get a report, but rather a continuation of Dr Thu’s dealings with her that began several years earlier back when she was in hospital. [53] It will be recalled, for example, by reference to Dr Thu’s letter of 24 August 2017 (exhibit 7, page 42) that the deceased had been the subject of assessment by a geriatric multidisciplinary team, aided by an interpreter, back in that era. Remarkably, the dealings with the deceased during her time in Canberra Hospital in 2017 rated no mention in the cognitive timeline referred to in Dr Martin’s report. This is presumably a reflection of the manner in which the doctor was briefed by Ms Erez’s then legal representative. [54] In any event, it is apparent from the letter of Dr Thu about the examination of 27 October 2022 that he did more in that examination than merely administer a single screening test. The letter reveals that there was engagement by Dr Thu with the deceased, that an array of recent information gathering occurred, and that the deceased was spoken to by Dr Thu in relation to life choices ahead of her. [55] In any event, that letter does not stand alone in providing evidentiary fuel to this court in order for it to make its own assessment of whether the deceased had the requisite testamentary capacity when she made her will. Over and above the exhibited evidence of opinions from members of the medical profession, there is other evidence, most obviously the affidavit and statement of the deceased, which I can have regard to in informing my assessment of the deceased’s testamentary capacity at the time she made the will. [56] That background evidence, as these reasons have explained, demonstrates there was a ham-fisted attempt made to consolidate control of the deceased’s affairs, and then an attempt to discredit her mental capacity so as to maintain that control. The evidence also unequivocally demonstrates that attempt failed in the face of the deceased’s demonstrated mental acuity. [57] I am satisfied that the deceased’s last will of 6 March 2020 was made at a time when she was free from any undue influence; when she was of sound mind, memory and -- 11 of 12 -- 12 understanding; and that she well and truly intended and understood that her will bequeathed her estate to her son. I have reached that conclusion appreciating she may have had some mild cognitive impairment, common enough for a person of her age, but not of such a degree as to deprive her of testamentary capacity. That is particularly so bearing in mind her estate here was a simple one, essentially the house and some money in the bank. I find she was well and truly able to comprehend her estate’s nature, just as she was well and truly able to comprehend and conclude that she should give effect to an elderly mother’s natural desire to leave her estate to her own son. [58] The plaintiff’s case has failed in respect of the 2020 will and must therefore be dismissed. Costs should follow the event. [59] The defence seek indemnity costs generally, or at least from the conclusion of day 3 of the trial. The plaintiff’s case was so weak it is difficult to believe she was properly advised by lawyers possessed of all the relevant evidence, or alternatively that she followed that advice. Ultimately, though, I am not prepared to conclude her pursuit of the case was so unreasonable, at least from the beginning, as to justify an indemnity costs order. In making these observations, I am not being personally critical of Ms Erez, who became self-represented as the trial progressed, but as has been observed before, litigation is not a learning exercise. She wanted to deploy this court’s processes through to the end and put the defence to the cost of defending it to the end. [60] Her pursuit of the case was carried out in a way which on an objective assessment, unnecessarily and grossly prolonged the trial hearing. There were at times prolonged delays and much of the evidence adduced by her side was adduced very slowly and was of no ultimate relevance. This case, if litigated by the plaintiff’s side true to its obligation as a party to the case, pursuant to Uniform Civil Procedure Rule 5, to proceed in an expeditious way, should have taken little more than two days, and certainly no longer than three days. It has taken six days. The gross prolonging of the case was the fault of the plaintiff’s side. It was unreasonable. In my conclusion, therefore, the defence should have their costs past day 3 of the trial paid on the indemnity basis. [61] My orders are: (1) The plaintiff’s application, continued as if started by a claim, is dismissed. (2) The plaintiff will pay the defendant’s costs of and incidental to the application, continued as if started by a claim, to be assessed on the standard basis up to and including day 3 of the trial, and thereafter to be assessed on the indemnity basis. -- 12 of 12 --