Background
Roofia Solouki, an elderly Iranian-born woman, died on 15 August 2023 aged 93. Her principal asset was a house at Smithfield, Cairns. From early 2017, the plaintiff, Adi Erez, had been living rent-free in that house with her twin sons. The deceased’s final will, executed on 6 March 2020, left her entire estate to her son, Saman Setoud, revoking all prior testamentary acts. After the Supreme Court granted letters of administration to Nele Jooste-Jacobs on 12 June 2024 and a notice to vacate was served on Ms Erez, she refused to leave.
Instead, Ms Erez filed an application to set aside the grant and to have an earlier 2015 will declared the deceased’s last valid will. That 2015 will appointed “The Sovereign Soltan Qeumars Shah Qajar by grace of God King of Iran” as executor and bequeathed the Smithfield property to Ms Erez’s twin sons, described as royal princes of the Qajar dynasty, with Ms Erez as trustee until they turned 18. Ms Erez alleged the 2020 will was the product of undue influence and that the deceased lacked testamentary capacity when she made it. The defendant cross-alleged that the 2015 will was itself procured by undue influence.
Evidence before Henry J revealed a disturbing pattern surrounding the 2015 will and an associated enduring power of attorney: the deceased’s niece, Shahin Fard, and a man named Glen Monaghan—who obtained the deceased’s enduring power of attorney—appear to have orchestrated a series of documents and medical attendances designed first to validate their control over the deceased’s affairs and then to portray the deceased as cognitively impaired. When the deceased was admitted to Canberra Hospital in August 2017, a geriatric multidisciplinary team, assessing her with an interpreter, concluded she had capacity to make decisions about her finances, accommodation and health. She subsequently revoked Mr Monaghan’s power of attorney and, after a period of continued medical review confirming at worst mild cognitive impairment, made the 2020 will.
The Court’s Holding
Henry J dismissed Ms Erez’s application. Applying the Banks v Goodfellow (1870) LR 5 QB 549 standard for testamentary capacity and the probate law meaning of undue influence (requiring actual coercion that overcomes the testator’s free will, not merely persuasion: Hall v Hall (1868) LR 1 P&D 481), the court was satisfied that the deceased had the requisite cognitive capacity, knew and approved the contents of her 2020 will, and was free of undue influence when she executed it. The court found the 2020 will was made after the deceased had broken free of “a web of bizarre influence” woven over her affairs, and was the product of due deliberation and appropriate support.
The court placed particular weight on the repeated expert assessments by geriatrician Dr Kyaw Thu over several years, conducted with interpreter assistance, which consistently found the deceased to have either normal cognition or only mild impairment insufficient to negate testamentary capacity. This evidence was corroborated by the evidence of defence neurology expert Dr Bruce Brew, who opined that the deceased did have testamentary capacity on the date of the 2020 will and that her RUDAS scores likely understated her true cognition given her non-English background and legal blindness. The plaintiff’s expert, psychiatrist Dr Lindsay Martin, was given no material weight: her report was not directed at the deceased’s actual capacity at the relevant date and had omitted the hospital multidisciplinary assessment from its cognitive timeline, apparently reflecting inadequate briefing by Ms Erez’s then-solicitor (whose covering email to the expert had stated “I do not want a mother and two children kicked out of their house”).
On costs, the court ordered standard-basis costs for the first three hearing days but indemnity costs for the remaining three days, reflecting the court’s finding that Ms Erez had conducted the trial unreasonably slowly.
Key Takeaways
- In Queensland probate law, undue influence requires proof of coercion that overcame the testator’s free will — mere persuasion or influence, however strong, is insufficient to invalidate a will.
- Testamentary capacity assessed under Banks v Goodfellow is not negated by mild cognitive impairment alone; the impairment must be sufficient to have actually prevented the testator from understanding the nature of the act, the extent of the estate, and the claims of potential beneficiaries.
- A series of independent medical assessments conducted with interpreter assistance over a prolonged period by an experienced geriatrician can constitute compelling evidence of testamentary capacity that is difficult to displace.
- Courts will scrutinise expert evidence that is inadequately directed, omits significant contrary material, or is visibly influenced by the litigation objective of the instructing party.
- Unreasonably slow conduct of a trial can attract an indemnity costs order for the period of delay, even where standard costs apply to earlier hearing days.
Why It Matters
This decision offers a vivid illustration of how courts will evaluate competing claims of undue influence and incapacity where both wills are alleged to have been tainted. Henry J’s analysis underscores that a challenger who asserts a prior will should prevail must grapple squarely with the positive evidence of the testator’s subsequent recovery of autonomy and continued cognitive function — not merely with earlier episodes of alleged control. The judgment also serves as a cautionary note on the limits of retrospective expert psychiatric evidence: a report that ignores inconvenient contemporaneous hospital records and is framed around a litigation outcome will carry little weight against a treating geriatrician’s longitudinal assessments.
For practitioners advising elderly clients with complex family situations, the case reinforces the value of contemporaneous, independently obtained capacity assessments at the time a will is executed, particularly where the testator has previously been subject to the influence of third parties. The indemnity costs order from day four onwards also signals that Queensland courts will not permit protracted proceedings to be conducted at the other party’s expense where the pace of trial is unreasonably extended by one side’s conduct.