Margaret Chalik, who died on 20 July 2021, aged 85, survived by her two adult sons, Gregory Chalik (the plaintiff) and Igor (now known as Isaac) Chalik ( the defendant), the deceased’s husband having predeceased her in 1995.
At the time of her death, the deceased had dementia, was residing in a nursing home, and her estate was managed by the NSW Trustee and Guardian (NSW Trustee). The deceased’s estate is now valued at $1,652,231.89, consisting entirely of cash.
The deceased made a series of wills over her life. The deceased’s penultimate Will, made on 29 October 1998 (1998 Will), left her estate equally to the plaintiff and defendant and appointed the NSW Public Trustee (now known as the NSW Trustee and Guardian) as the executor and trustee of her estate.
The deceased’s last Will, made on 23 April 2013 (2013 Will), leaves everything to the plaintiff and appoints him as sole executor. It was prepared by a solicitor whom the plaintiff, Gregory, had arranged for the deceased to meet.
In these proceedings, the defendant challenges the validity of the 2013 Will on various grounds, including lack of testamentary capacity, and the plaintiff seeks further provision in the event the 2013 Will is held invalid. In addition, they each make claims that the other owes money to the deceased’s estate.
Chalik v Chalik [2024] NSWSC 116
The deceased lacked testamentary capacity, and her last Will was executed as a result of undue influence (i.e., coercion). Contrary to her solicitor’s
‘honestly and genuinely held …view that the deceased had testamentary capacity’.
Henry J at [316]–[320]came to a different opinion, mainly because of the following factors:
- the solicitor had no file notes of his attendances with the deceased;
- his evidence was based solely on his recall of events nine or ten years prior;
- one of the first things the client said to the solicitor was that they did not know why they were there to see him;
- the deceased was elderly, observed to be not in robust health, lacked an agile mind, responded slowly and would not engage when the solicitor attempted to ask questions about leaving a person out of the Will;
- the deceased conversed in Yiddish, a language which was neither the deceased’s primary nor secondary language (which were Russian and English), and the solicitor’s own Yiddish was ‘rusty’;
- the solicitor detected some unease and discomfort when asking the deceased to come alone;
- the deceased appeared to be dependent on the plaintiff;
- the solicitor did not ask the deceased about the value and extent of the estate and made assumptions based on a conversation with the plaintiff some years previously;
- the solicitor did not ask the deceased questions to test their memory, ability to recall and reflect on the claims on the estate or whether they had a previous Will and, if so, why they were changing it;
- the solicitor did not ask the plaintiff who the deceased’s attorney and guardian were, who had arranged the meeting and whether there was any reason to be concerned about the deceased’s mental capacity, including as a result of any diagnosis, behaviour, medication or the like; and
- the solicitor admitted that his memories might have intermingled over two meetings 18 months apart.
In finding a lack of testamentary capacity, Henry J observed that the
‘comprehending and weighing of [another son, Isaac’s] claim required the deceased to be able to weigh up and make a judgment about whether there was a reason to depart from her longstanding intention of sharing her estate equally between her two sons, as provided for in the 1998 Will. That would require the deceased to be able to mentally process and consider historical facts as well as recent events, such as whether, in fact, [the disenfranchised son] Isaac was seeing her regularly or at all and the impact of [her other son] Gregory on that. Given that the deceased had lost insight into her own condition and care needs, her short-term memory loss meant she could no longer retain information, and she had shown poor judgment and impulsivity in her conduct, it is difficult to see how she had the cognitive capability to recall, reflect and reason about those matters’ (at [323]).
Testamentary Undue Influence
Although there was no direct evidence of pressure or coercion by the plaintiff on the deceased, her Honour’s conclusion that the deceased did not have testamentary capacity was because their cognitive impairment was severe enough to compromise their day-to-day functioning. The deceased was reliant on the plaintiff for her care. These factors made the deceased extremely vulnerable to the plaintiff’s influence and susceptible to being overborne by the plaintiff’s free will (at [350]).
Her Honour inferred the plaintiff was the person who, in practical terms, initiated the making of the deceased’s last Will by placing pressure to do so and was likely involved in its preparation by dictating the provisions in the Will (at [352]).
The solicitor indicated the deceased was psychologically dependent on the plaintiff and looked to him for assurance. Henry J accepted that the plaintiff asserted a “moral command” over the deceased and used his proximity to press home the idea he alone should benefit from her Will.
As a consequence, the deceased’s own will was likely overborne by the plaintiff, and the deceased did not make a free and fully informed decision when making the 2013 Will. This represented practical coercion in Henry J’s view’ (at [354]).
Her Honour was also informed ‘by the contemporaneous records that paint a picture of the plaintiff as someone who was controlling of the deceased and the impression created by the plaintiff’s evidence that he felt that he deserved the estate because the defendant had been successful, and the plaintiff was undertaking the deceased’s care and, therefore, had a right to use the deceased’s funds’ (at [355]).
Section 100 statement
A statement includes representations or facts, written or not (Succession Act, s 100(1)). Practitioners often prepare a written statement or statutory declaration by the deceased when preparing a will. The definition extends to formats like sound or video recordings of the testator (Rathswohl v Court [2021] NSWSC 356), but caution is needed, especially with covert recordings made without consent, which may breach NSW surveillance laws (Surveillance Devices Act 1997 (NSW), s 7).
Generally, illegally obtained evidence is excluded from admission (Evidence Act 1995 (NSW), s 138), unless one party consents and the recording is necessary to protect their lawful interests (Surveillance Act, s 7(3)(b)(i)), where ‘lawful interests’ is context-dependent. If there’s doubt about the lawfulness of a recording, an application for privilege on self-incrimination should be made under the Evidence Act, s 128.
Care must be taken to avoid recordings that could be considered informal wills eligible for probate (Succession Act, s 8). Other forms of testamentary evidence include:
- oral statements,
- emails made at the time of death (Wheatley v Lakshmanan [2022] NSWSC 583),
- a statement in counsel’s briefing with waived privilege (Le v Angius [2022] NSWSC 1150), and
- deeds like family arrangements (Last v Lewis [2022] NSWSC 791).
Testamentary statements are valuable because they are admissible as evidence of any fact they state, effectively allowing the deceased to ‘speak from the grave’ (Succession Act, s 100(2)).
Family provision claim
The plaintiff made an application for family provision. Henry J referred to the manner in which the last Will came about, the creation of a statement pursuant to section 100 of the Succession Act 2006 (NSW) (‘Act‘) and the access to and withdrawals of money by the plaintiff from the deceased’s bank account for his own benefit as relevant to whether adequate provision had been made for the plaintiff’s proper maintenance and advancement in life.
Henry J observed these actions demonstrated the plaintiff
‘took advantage of the deceased’s declining cognitive capacity’ (at [510]).
The application was dismissed with no order for costs.
Chalik v Chalik [2025] NSWCA 136
This appeal concerns a dispute over two wills executed by Margaret Chalik (the deceased). The deceased’s penultimate Will (the 1998 Will) split the estate equally between her sons, Gregory Chalik (the Appellant) and Isaac Chalik (the Respondent). The final Will (the 2013 Will) left everything to the Appellant, and made him sole executor of the estate. The Appellant commenced proceedings to propound the 2013 Will and seek family provision. Justice Henry (the primary judge) held that the deceased lacked testamentary capacity to make the 2013 Will, did not know and approve its contents, and was subject to the Appellant’s undue influence, having regard to various matters including:
(i) clinical records predating and immediately post-dating the 2013 Will, which recorded the deceased’s deteriorating cognition and potential dementia; and
(ii) evidence that the deceased could not answer why she was attending her solicitor’s office one week before the 2013 Will was made.
Henry J admitted the 1998 Will to probate, holding that it made adequate provision for the Appellant because, after making allowance for accommodation and other expenses, the Appellant would obtain a “buffer for contingencies in life” of $220,000 in addition to an interim distribution he had received of some $250,000.
Chalik v Chalik [2024] NSWSC 995: costs
Henry J held that each party should bear their own costs. The defendant applied to vary her Honour’s costs order. Slattery J held that the plaintiff unreasonably rejected two offers of compromise. His Honour made a costs order of $40,000 against the plaintiff, representing less than a quarter of the defendant/respondent’s costs. The plaintiff/Appellant challenged Henry J’s decision and the finding that the deceased lacked capacity to make the 2013 Will. The Respondent sought leave to appeal against Slattery J’s judgment.
In dismissing the appeal, the Court of Appeal held that Henry J did not err in holding that the deceased lacked testamentary capacity. A wealth of evidence supported this conclusion. Henry J did not deny the Appellant procedural fairness in considering the deceased’s testamentary capacity, as the issue was properly raised in the Defence and capacity was a central issue at trial.
Further, the Court of Appeal held that the common law test for testamentary capacity is not supplanted by s 19(2) of the Succession Act 2006 (NSW). Section 19(2) provides specific information that an applicant must provide to the Supreme Court when seeking leave to apply for a statutory Will (an order to make, alter, or revoke a Will for a person who lacks testamentary capacity).
Cross appeal
The Court of Appeal, allowing the cross-appeal, held that in Chalik v Chalik [2024] NSWSC 995, Slattery J’s exercise of discretion miscarried and would have resulted in the Respondent losing almost 20% of his inheritance by reason of the Appellant’s unreasonable rejection of the Respondent’s two offers of compromise.
In Chalik v Chalik [2025] NSWCA 136, the Court ordered the Appellant to pay a fixed sum representing approximately 70% of the Respondent’s costs at trial.