The Estate of Juliana Voros; Cooney & Ors v Cherry

HIS HONOUR: Juliana, also known as Julia, or Julie, Voros (“the deceased”) died on 11 September 2012.

The deceased left two Wills, the first of which was made on 9 June 2006 and another, which was purportedly made on 15 November 2007. I say “purportedly made” in relation to the 2007 Will because there is a dispute about its validity. There is, however, no dispute about the validity of the 2006 Will, the only issue being whether it was revoked by the 2007 Will. (I shall refer to the purported Will, even though it is a disputed document, as “the 2007 Will”, hereafter, without in any way having prejudged the issue of its validity.)

In the 2006 Will, the whole of the deceased’s estate was left to the deceased’s son, John Arthur Collins, who was also appointed as the sole executor. On 16 November 2012, this Court granted Probate in common form of the 2006 Will to him.

Mr Collins died on 12 January 2014, leaving a Will dated 18 September 2013, in which he appointed the Defendant, Michael Cherry, as the sole executor and sole beneficiary of his estate. On 3 June 2014, this Court granted Probate of Mr Collins’ Will to the Defendant. The Defendant is, therefore, the executor by representation of the 2006 Will under that Will: Imperial Acts Application Act 1969 (NSW), s 13; Re Kilby & Ors [2016] NSWSC 1433, Slattery J, at [15] – [17].

The Plaintiffs, Cassandra Nicole Cooney, Kylie Mair, Danielle Voros, Christopher Voros, and Tayla Voros, are the five grandchildren of the deceased, and the beneficiaries, in equal shares, named in the 2007 Will. They are the children of the deceased’s son, Keith, who predeceased the deceased, and his wife, Kim, who gave evidence in these proceedings in support of the Plaintiffs’ case.

On 21 April 2015, this Court granted Probate in common form of the 2007 Will to Cassandra, without having revoked the grant of Probate of the 2006 Will. (The question whether Cassandra sought Probate of the 2007 Will, knowing that Probate of the 2006 Will had been granted, was not explored in the evidence. It is likely that she did not inform the Court of the earlier grant.)

The deceased’s estate consists of only one asset, being a parcel of real estate, situated at Kempsey Road, Lower Creek, in the northeast of New South Wales. There is a dispute about the value of that real estate, the Plaintiffs suggesting that it has a value of $50,000, whilst the Defendant suggests a value of $120,000. At this time, nothing turns on the dispute as to the value of the deceased’s estate, and it is, otherwise, unnecessary to refer to its value.

With no disrespect intended, hereafter, I shall refer to the parties, and any other person, after introduction, by either her, or his, first name, respectively or by the role played in these proceedings.

On 31 August 2015, Cassandra filed a Summons in the Probate List, in which she sought an order revoking the grant of Probate of the 2006 Will. (In the orders sought, the Plaintiffs referred to Probate being “renounced” but it is clear that what was being sought is an order revoking the grant of Probate: 1T12.) She annexed to that Summons, a copy of the Probate of the 2007 Will, as well as a copy of the Probate of the 2006 Will.

The matter was first listed before Senior Deputy Registrar L Brown on 28 September 2015. Both parties appear to have been legally represented on that occasion, the Plaintiffs by a solicitor agent and the Defendant by counsel. The Court made directions for pleadings and the matter was adjourned until 23 November 2015.

On 29 October 2015, Cassandra filed a Statement of Claim. In this document, she referred to the grant of Probate having been made to John. She asserted that her father, Keith, had been alive at the time the 2006 Will was made by the deceased. She referred, then, to the 2007 Will and to the circumstances in which it was made (to which I shall later return); she stated that she and the other beneficiaries did not know of the deceased’s death until they were told by Michael, who had been contacted by her mother, on Facebook, shortly before the commencement of the proceedings; and that Michael was not related to the deceased by blood, or by marriage, but that he was the sole beneficiary of John’s Will.

No defence appears to have been filed by Michael in accordance with the directions made.

The matter was next before Senior Deputy Registrar Brown on 23 November 2015, when there was no appearance by, or on behalf of, the Plaintiffs, and counsel again appeared for the Defendant. The matter was adjourned until 7 December 2015 and the Court noted that if the Plaintiffs did not appear on the adjourned date, “orders will be made in her [sic] absence”.

The Statement of Claim filed by the Plaintiffs may not have been served on Michael because on 7 December 2015, the Court made an order that the Plaintiffs file and serve a Statement of Claim by 29 January 2016. The matter was adjourned until 1 February 2016. Again, there was no appearance by, or on behalf of, the Plaintiffs, and the Defendant was ordered to serve a copy of the orders that had been made upon them.

On 1 February 2016, neither the Plaintiffs nor the Defendant appeared.

The matter came before Lindsay J on 21 March 2016. On this occasion, Cassandra appeared on behalf of the Plaintiffs and counsel again appeared for Michael.

His Honour noted a number of factual matters to which reference has been made above; that there was a dispute between Cassandra and Michael about the validity of the 2007 Will and which of the two grants of Probate “if either of them, should be confirmed”; and that there was a dispute about the beneficial ownership of the real estate forming part of her estate. (This issue may be ignored in these proceedings since neither party has sought any relief in relation to that matter, although Michael attempted to tender some documents which were said to be relevant to the reasons why the deceased was unlikely to have wished to make a Will in terms different from the 2006 Will.)

His Honour ordered that Michael be substituted as the Defendant; he granted leave to Cassandra to file and serve an amended Statement of Claim no later than 4 April 2016; he directed Michael to file and serve any Defence and Cross-Claim by no later than 18 April 2016; and he directed Cassandra to file and serve any Reply and Defence to Cross-Claim by no later than 2 May 2016. Finally, his Honour ordered that Cassandra deliver up to the Registrar, no later than 4 April 2016, the original grant of Probate made in her favour on 21 April 2015.

Cassandra filed an amended Statement of Claim on 31 March 2016. In that document, although not put in these terms, she asserted that the grant of Probate to John should be revoked because the 2007 Will was the last valid Will of the deceased and because she had obtained a grant of Probate of that Will.

Michael filed a Defence to that Statement of Claim on 17 June 2016, stating that the grant of Probate of the 2007 Will should be revoked because “the alleged later Will is fraudulent and not the genuine Will of Julie Collins”. He also filed a Statement of Cross-Claim, which, as far as I can glean, sought confirmation that the 2006 Will was the last valid Will of the deceased and that it was not revoked by the 2007 Will, with the consequence that the Probate made to Mr Collins was said to be the proper grant of Probate.

In accordance with the orders of Lindsay J, on 16 May 2016, Cassandra lodged the original Probate of the 2007 Will with the Court and it remains in the Court file.

On 11 July 2016, Michael also lodged the original of the Probate of the 2006 Will and it remains in the Court file.

On 11 July 2016, the matter was referred to the Equity Registrar to obtain a hearing date. The matter was listed, for hearing, before me, on 11 October 2016.

On 12 September 2016, at a pre-trial directions hearing at which both Cassandra and Michael appeared in person, the Court identified the documents on the Court file and Cassandra and Michael each confirmed that they were the only documents upon which reliance was to be placed.

At the hearing, the parties agreed that the principal issue was whether or not the 2007 Will should be recognised as the last valid Will of the deceased. If it was, they agreed that Probate of the 2006 Will, made in favour of John, should be revoked.

On 11 October 2016, regrettably, the matter did not commence until shortly before the long adjournment due to the delay in some of the Plaintiffs arriving in Sydney, from Queensland, because of airline difficulties. The hearing continued on 13 October 2016.

Each of the parties appeared without legal representation at the hearing. Cassandra indicated that she was the spokesperson for the Plaintiffs and she presented the case on their behalf. This was confirmed by her on the first day: 1T7.20 – 1T7.23. The two other Plaintiffs, Danielle and Kylie, who were present in Court on each day of the hearing, did not dispute what Cassandra had said and confirmed that she was the spokesperson for the Plaintiffs on the second day of the hearing: 2T1.25 – 2T1.30.

At the commencement of the hearing, the Court confirmed its duty to ensure that the trial was fair and determined in accordance with the law: 1T7.34-7.36. The parties were told that this duty applied whether each party was unable to obtain legal representation, or if they appeared, or he appeared, self-represented by their, or his, own choosing: MacPherson v R (1981) 147 CLR 512, 546-547; [1981] HCA 46. The duty applied to both parties. That did not mean, however, that to not retain lawyers, should be an advantageous procedural step.

The parties were also told that, as unrepresented litigants, the Court’s duty was not to advise either how to conduct the case; nor to advise of how rights should be exercised; nor to become the advocate for, or stand in the shoes of, a legal representative of one or both of them: 1T37-45. Nor would the Court unduly interfere with the conduct of the trial on their, or his, behalf. Any assistance would be proportionate in the circumstances and would be given without affording an advantage to either of the parties as self-represented litigants: Tomasevic v Travaglini (2007) 17 VR 100, at 130; [2007] VSC 337 (Bell J); Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) per Samuels JA; Cicek v Estate of late Solomon [2014] NSWCA 278, per Ward JA, at [126]-[130].

The Court also informed the parties that evidence would not be permitted to be given from the bar table without oath or affirmation unless it was agreed to be not in dispute: 1T7.43-45. (I made no order dispensing with the rules of evidence in view of the nature of the proceedings.)

The limited guidance to which reference was made, then went to explaining to the parties how the case would proceed, commencing with the reading of the pleadings and the affidavits onto the Court record; informing each of the right to object to any part of the affidavit evidence relied upon by the other, which evidence might be regarded as inadmissible; providing an explanation of the order of calling witnesses; informing them of the need for a witness to enter the witness box to be cross-examined if required; the right to cross-examine the deponent of any affidavit read by the other party; providing an explanation of the consequences of not cross-examining a witness; and also referring to the tendering of any additional documents not annexed to an affidavit: 1T8.3-1T8.49.

In Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283; [2014] VSCA 193, Osborne JA wrote, at [22], that “[T]he right of an unrepresented party to be heard requires that he or she be able to understand the bases on which he or she might contest the evidence led in support of a claim against them, and the manner in which he or she might answer such claim by adducing evidence in response.” In this case, the Court provided the parties with an explanation of the role and purpose of cross-examination, and the necessity for each side to put to each witness any aspects of his, or her, evidence that was to be contradicted, or which claim was said to be false, so that the witness would have an opportunity to provide an explanation: 1T8.29-1T8.42.

(This was an important matter in this case and each was reminded of the need to do so during the cross-examination.)

Naturally, during the course of the hearing, it was necessary for there to be some degree of tolerance and assistance given to the parties, within the constraints of the duty to ensure a fair trial to both parties, neither of whom had any legal knowledge.

The parties were also informed that after the cross-examination, each side would have an opportunity to make submissions explaining why the result proposed by them, or him, respectively, was appropriate: 1T8.42-1T8.49.

Because Cassandra asserted that she had not received a copy of two of Michael’s affidavits, it was necessary for the Court to provide a copy of each to her. The copy of each affidavit was provided during the afternoon of the first day and she was not required to cross-examine until the hearing resumed.

The parties were informed that the Court had read the documents on the Court file subject to objection.

In order to save time, and to not incur costs unnecessarily, three of the Defendant’s witnesses were cross-examined first. Again, in order to avoid unnecessary costs being incurred, the Plaintiffs’ mother, Kim Stellatos, was then cross-examined with the result that none of these witnesses were required on the second day of the hearing.

Overall, I am satisfied that the each of the parties understood the nature of the proceedings and that Cassandra and Michael each conducted the proceedings as well as she, and he, could, respectively. It was clear that each had prepared for the hearing upon the basis that they, and he, would be without legal representation. Neither party appeared to have any difficulty responding to questions, or to answering matters raised by the Court. In my view, each conducted the hearing adequately, and to the best of their, and his, ability.

In addition, each acknowledged when matters were not in dispute between them, and during cross-examination, treated the witness being cross-examined politely. I commend each of Cassandra and Michael for the manner in which she, and he, conducted the hearing.

Of course, I have remembered, in reaching my conclusions about the evidence, that neither Cassandra, nor Michael, is legally qualified, and that there was nothing that enabled me to infer that either had any qualifications, or experience, or that she, or he, respectively, had any knowledge of the substantive area of Probate law.

The 2006 Will (the original of which was marked Ex. 1) is a simple typewritten document, prepared by Mr Roger Wilkinson, Solicitor, of South West Rocks. (The name of the solicitor and his address is shown on the front sheet of the 2006 Will.)

It is in the following terms:

The 2006 Will was signed by the deceased in the presence of two witnesses and her signature was attested to in the presence of those witnesses and in the presence of the deceased. One of the attesting witnesses was the solicitor who prepared the 2006 Will and the other is described as Heather Cook, of South West Rocks, a hairdresser.

In an affidavit sworn on 18 October 2012, John had stated his belief that the 2006 Will was the last Will of the deceased; that he was not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased; that he saw the deceased sign her name on many occasions and he recognised her signature at the foot or end of that document; that the deceased did not marry after the 2006 Will was made; and that he had published notice on 5 October 2012 in the Macleay Argus, a newspaper circulating in the district where the deceased resided at the date of her death. Finally, he stated that he was “not aware of any circumstances which raise doubt as to my entitlement to a grant of Probate of the Will of the deceased”.

There was no suggestion that the 2006 Will was not duly executed or that it was not a valid Will. There was also no dispute that, at the time John swore the affidavit, he would not have known of the 2007 Will.

I am satisfied that the 2006 Will was duly executed, and that if it was not revoked by a later valid Will, it is the last valid Will of the deceased.

When explained, Cassandra accepted that in order to obtain the order sought by the Plaintiffs, they needed to establish the validity of the 2007 Will, which, on its terms, revoked the 2006 Will: 1T4.04 – 1T4.30.

The 2007 Will (the original of which was marked Ex. A) is a handwritten document comprising 3 (exercise book) pages. It is written in green sparkly ink. What is said to be the signature of the deceased appears at the bottom of each of the first 2 pages, and after the terms of the Will, at about the middle of the third page. Each signature, said to be of the deceased, is written in purple ink.

There is also the signature of two witnesses, namely Kim Voros (now Kim Stelletos) and Ben Cooney, written at the bottom of each of the first two pages and underneath the attestation clause on the bottom of the third page. Kim’s signature is written in purple ink and Ben’s signature is written on the first page in red ink, on the second page with the “B” in red ink and the balance in purple ink (overwriting what appears to have been written in red ink) and in purple ink on the third page. Underneath each signature is the name of the signatory.

The 2007 Will is in the following terms (omitting obvious parts for privacy reasons):

The 2007 Will is obviously much longer than the 2006 Will although, effectively, all of the deceased’s property is left to her five grandchildren.

Next, I shall identify a number of formal matters about which there was no dispute, namely, that:

(a) The deceased was of full age at the time each Will was made;

Like most probate disputes, the personality, state of mind, desires, and prejudices of the central person, namely the deceased, her relationship with family members she did, or did not, provide for, and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about the validity of the disputed Will. With the death of the deceased, most of those matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [51].

Also, relevantly to Michael’s defence, as was observed by Peter Gibson LJ in Fuller v Strum [2002] 1 WLR 1097 at [32]:

Usually, in contested probate proceedings, both attesting witnesses are called, as well as the author of the Will being propounded. That was not done. However, I have referred to John’s affidavit which was filed in support of the application for the grant of Probate of the 2006 Will. To the extent that it is necessary, because there was no dispute about the validity of the 2006 Will, I dispense with the need to provide the evidence of one, or other, of the attesting witnesses.

In relation to the 2007 Will, only one of the attesting witnesses gave evidence, as did the author of that Will (as to which see later). Before turning to the evidence, it is to be noted that there was no evidence from Ben, the second of the persons shown to be an attesting witness to the deceased’s signature on the 2007 Will. Ben is Cassandra’s current de facto partner and the father of her children. (Because Michael sought to impugn the validity of the 2007 Will, the same dispensation, in my view, may not be able to be granted in relation to the second attesting witness to the 2007 Will.)

There was some explanation given by Cassandra for the failure to call Ben as a witness in the proceedings. The following passage of her evidence in cross-examination, at 2T5.23 – 2T5.32, is relevant:

Cassandra did not disclose who told her that the affidavit could not be filed. Nor, at the hearing, did she seek to file, or read, the affidavit, a copy of which had been served on Michael: 1T27.22. Nor did she provide any evidence to substantiate any health issues from which Ben suffered that would have prevented him travelling to Sydney if he were required for cross-examination.

The failure to call Ben, or to seek to have his affidavit read, may be relevant in this case because of Kim’s evidence to which reference will be made and because of the apparent use of different pens by the deceased and Ben, about which none of the Plaintiffs who had sworn or affirmed an affidavit gave any evidence. I have not given this aspect a lot of weight in the circumstances of this case, but it is a matter that must be referred to.

There was also no evidence given by the two youngest Plaintiffs, each of whom is now over the age of 18 years. There was no explanation for the failure to adduce the evidence of each, although it was said that both were present at the time of the preparation and signing of the 2007 Will.

In support of the Plaintiffs’ case, Cassandra sought to rely upon a document headed “Expert Report”, which was filed on 30 June 2016, from a person identified as “Lachlan Jarvis”. Michael objected to the tender of this document.

When I foreshadowed that, in all probability, I would reject the tender Cassandra asked whether she could apply to adjourn the matter so that proper evidence from an expert could be obtained. She was told that she could make such an application and that she should consider whether to do so over the long adjournment. Following the long adjournment, when asked whether she had any application to make, Cassandra responded that the Plaintiffs did not wish to make any application and that, having spoken to a solicitor, they would accept the ruling of the Court in relation to the admissibility of that document: 1T7.00 – 1T7.13.

I then dealt with the tender of the “Expert Report”. There were a number of problems with admitting the report into evidence, including that:

For these reasons, I rejected the tender of the report.

In support of the validity of the 2007 Will, the Plaintiffs relied upon an affidavit of each of the following deponents, the contents of which I shall set out in full (as they are not very long). In considering the form and content of the affidavits, I have not forgotten that the Plaintiffs were not legally represented.

Even so, the affidavits that were filed provided far from a comprehensive account of the events surrounding the preparation, and execution, of the 2007 Will. It will be remembered that these affidavits were prepared at a time when it was clear that Michael was opposing the claim for relief.

None of the deponents disclosed the whole of the conversation which is said to have been held in which the deceased is said to have told the Plaintiffs what she wanted to have included in the Will. None disclosed precise details of the circumstances surrounding the execution by the persons who attested the deceased’s signature.

In referring to these matters, there is insufficient evidence to lead to the conclusion that each of the Plaintiffs deliberately withheld the truth, or to enable the making of a finding that relevant factual details were deliberately omitted from each of the affidavits, resulting in a finding that the Plaintiffs did not want to, or were unable to, disclose precisely what had happened.

However, the duty of a witness is to tell the truth, the whole truth, and nothing but the truth. Young J (as his Honour then was) wrote in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 at 197, that the obligation is the same when one is making an affidavit or when one is giving evidence in the witness box. That statement was referred to, with approval, in McGrath v Troy [2010] NSWSC 1470 per White J, at [124].

The lingering doubts that I have about the information contained in each of the affidavits of the three Plaintiffs are not assuaged when the affidavits are set out and the oral evidence is referred to. The materiality of what is omitted from each of these affidavits is obvious.

Kylie’s affidavit was in the following terms:

Nothing is written about the conversation in which the deceased gave instructions for the 2007 Will. Nor is there anything about how the terms of the 2007 Will came to be written. That a Google search is said to have been carried out by Cassandra and that the terms of the Will were said to be dictated to Kylie (as to which see later) is not even hinted at. The reference to “We agreed” is curious, bearing in mind that what must be established are the deceased’s testamentary intentions and how those intentions were communicated to the author of the testamentary document.

Why there was no reference to the instructions for the 2007 Will is not clear. It is also surprising that, if revealed as the deceased’s intention, it was not included in the document.

In cross-examination, Kylie gave this evidence at 2T13.24 – 2T13.33:

And at 2T14.8 – 2T14.18:

Neither conversation with the deceased appears in the affidavit.

It was necessary for the Court to ask some questions of Kylie at 2T16.33 – 2T18.43:

This evidence demonstrates, further, that Kylie’s affidavit is deficient in setting out all of the events about which she gave oral evidence.

Kim’s affidavit was in the following terms:

The following passage of Kim’s oral evidence (with transcript correction) is relevant and provides a basis for the doubt about the completeness of this affidavit (1T53.13-1T55.21):

It can be seen that Kim said nothing about the conversation described in her affidavit as being what the deceased had “specifically said”. The sentence “they would leave it to the grandchildren, the property” could not be accurate if it was the deceased who had said that she wished to leave the property to her grandchildren. Also, in light of her oral evidence, I am far from confident that Kim was present when what she says in the affidavit was disclosed as being the deceased’s testamentary intentions.

In addition, Kim said nothing in her affidavit, of having been present when the 2007 Will was read, in her presence, to the deceased after it had been signed. Kim, according to Kylie’s evidence, had not been present when the 2007 Will was read to the deceased prior to its execution. Kim’s evidence was that she was present when the Will was read to the deceased before anybody signed it. Kylie’s evidence is to the contrary, namely that it was signed first and then read again to the deceased in the presence of the attesting witnesses.

I should mention the following evidence given by Kylie in regard to Ben’s involvement (2T19.27-19.46):

Danielle’s affidavit was in the following terms:

Danielle was not cross-examined by Michael. Thus, her evidence stands unchallenged. Prima facie, a court will accept the unchallenged evidence of a witness. However, even if evidence is unchallenged, a party may be able to demonstrate that the evidence is inherently illogical or unreliable or inconsistent with their evidence that is accepted. Furthermore, the evidence may be shown to be defective in some way, and if it is, the Court is not required to accept evidence that is unchallenged.

Danielle’s statement that “We agreed” in circumstances where the deceased was said by Kim to have specifically stated that if the deceased were to die before John, which she believed would be very likely, he was to continue living in the property until his death seems an odd turn of phrase. She, also, does not state that she saw either of Kim, or Ben, witness the deceased’s signature on the 2007 Will. She wrote virtually nothing about what occurred before, during, or after the signing of the 2007 Will. These are matters of some concern and their omission causes me to not accept, unequivocally, her untested evidence.

Cassandra’s affidavit of 18 March 2016 was in the following terms:

Her statement that “Our agreement with my nan” in circumstances where Kim had written that the deceased said if she was to die before John, which she believed would be very likely, he was to continue living in the property until his death, similarly seems an odd turn of phrase. She, also, does not state that she saw either Kim, or Ben, witness the deceased’s signature. She, also, wrote virtually nothing about what occurred before, during, or after the signing of the 2007 Will.

That the last paragraph of each affidavit is in essentially the same terms is a matter to be noted.

Earlier, Cassandra had affirmed an affidavit of executor on 16 March 2015, which was read in the proceedings, although clearly filed in support of the application for Probate, in which she stated her belief that the 2007 Will was the last Will of the deceased; that she was not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased; that she saw the deceased sign her name at the foot or end of that document and identified the attesting witnesses as Kim Stellatos and Ben Cooney; that the deceased did not marry after the 2007 Will was made; and that she had published a notice on 27 February 2015 on the NSW online Registry website; and that she and the other Plaintiffs were the sole beneficiaries named. Finally, she stated that she was “not aware of any circumstances which raise doubt as to my entitlement to a grant of probate of the will of the deceased”. (As stated earlier, whether the last statement is correct, was not investigated.)

On the Plaintiffs’ evidence, the following is revealed:

A number of these are circumstances relevant to the preparation and execution of the 2007 Will that "excite the suspicion of the Court".

Michael gave evidence that was advanced to demonstrate that there was a doubt as to the validity of the 2007 Will. In addition, he stated that his belief was that the signatures of the deceased on the 2007 Will were not genuine signatures. However, he was unable to call any direct evidence to contradict the evidence of the Plaintiffs’ witnesses that the signatures of the deceased appear on the 2007 Will.

In his first affidavit, Michael wrote that on 9 February 2015, he had contact with Kim, in which contact he had mentioned to her that both the deceased and John had died. His evidence is corroborated by a number of Facebook messages which were annexed to his affidavit, and which were in the following terms:

(It is important to note the statement made by Kim that there had been attempts at “contacting John and Julie over the last few years but they didn’t want to talk to me or my kids. I don’t know why”. In addition, she raised the question “What happened to their property?” which question seems somewhat inconsistent with her being in shock as the explanation for not having mentioned the 2007 Will.)

Michael also annexed a copy of a number of Facebook messages from, and to, Cassandra, on 16 March 2015, which were in the following terms:

Whilst Kim’s explanation that she was in shock when told that both her mother-in-law and her brother-in-law had died may appear plausible, it is highly unlikely that some (about 5) weeks later, Cassandra would have still been in shock at the news. Nor is there any evidence that the relationship of either Kim or Cassandra, with Michael, was strained at the time of the Facebook messaging. It is not apparent to me why Cassandra then would have kept the existence of the 2007 Will from Michael.

As is clear, Cassandra did not write anything about the 2007 Will or anything about its contents in any of her messages to Michael. This, in my view, casts some doubt on the evidence of the Plaintiffs as to the existence, at that time, of the 2007 Will.

Furthermore, in circumstances where the 2007 Will provided for the jewellery, personal possessions and furniture, to the grandchildren, one of whom was Cassandra, the offer to purchase photographs and anything else the deceased had “that was Hungarian”, seems to be inconsistent with a then existing Will.

Cassandra’s oral evidence about this omission was as follows (T24.19-26):

The evidence is, of course, inconsistent with the terms of the 2007 Will, which specifically provided a bequest of, amongst other things, “personal possessions” to the grandchildren. It is difficult to accept that Cassandra did not understand that the photographs were included within the meaning of “personal possessions”. Indeed, she specifically stated in the evidence quoted above that the 2007 Will did not refer to “personal effects” when, of course, it did refer to “personal possessions”.

Michael gave the following evidence in his affidavits:

(Whilst no objection was taken to Paragraph 24, I did not treat the statement about the inconsistency of the two signatures as more than a statement that Michael believed the signatures to be different. Any opinion expressed by him was not admissible to prove the existence of a fact (whether the deceased signed the 2007 Will) about the existence of which the opinion was expressed: s 76 Evidence Act 1995 (NSW).)

Michael relied upon the evidence of a number of other witnesses, some of whom were cross-examined and whose evidence I accept. The first was Michael Gladstone Greene, who stated in his affidavit:

Next was the witness, Adrian Thomas Doyle, who stated in his affidavit:

The final witness was Robyn Diane Seelin who stated:

(I should mention that when cross-examined about the address referred to in the 2007 Will, Cassandra referred to “Sytech”, which she described as “a program online where you put in a person's name or whatever like that and it comes up with the different titles. It is like a title search by name because nan when nan told us the address, she said "Cedar Farm" and I said, "you can't put that, you have got to put the exact address": 2T10. None of this appeared in any affidavit relied upon by the Plaintiffs.)

I found each of the Defendant’s witnesses to be truthful. In addition, unlike the Plaintiffs and the Defendant, each of them has no interest in the result of the case (although each is a friend of Michael). There is no suggestion that any of them would personally stand to gain in giving evidence against the Plaintiffs.

I should mention that whilst some of the evidence of each of these witnesses was challenged, Cassandra did not submit that any of them was a dishonest witness who gave false testimony to assist Michael’s case. In any event, there is simply no reason not to accept the evidence that each gave of his, and her, conversations, respectively, with the deceased, or what Ms Seelin wrote about her involvement in obtaining a street number for the address of the deceased in 2009.

It is also important to note that the 2006 Will was made at the time that the deceased’s son, Keith, was still alive. Neither he, nor any of the Plaintiffs, was identified, in the 2006 Will, as a substitute beneficiary, in the event that John did not survive the deceased. This fact, in my view, supports the evidence of Michael, and of his witnesses, in so far as it relates to his, and her, conversations with the deceased about the Plaintiffs.

(There were other matters upon which Michael sought to rely going to the character, reputation, and conduct of Cassandra, which was rejected and to which I shall not refer in these reasons. I did not think that the evidence would, either by itself, or having regard to other evidence adduced, or to be adduced by the party seeking to adduce the evidence, have significant probative value: s 97(1) Evidence Act 1995 (NSW).)

Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and what each put to me following the evidence being concluded.

The Court, in its probate jurisdiction, has the power to revoke a grant of Probate, a power that may be exercised at the discretion of the Court having regard to all relevant circumstances: Re Gardiner [2016] VSC 541, per McMillan J, at [24]. The revocation of a grant of Probate is not unlike setting aside a Court order: Estate Cockell; Cole v Paisley [2016] NSWSC 349, per Lindsay J, at [53]; Re McQuillan [2016] VSC 647, per McMillan J, at [17]. Delay in seeking revocation of a grant of probate in common form can be a bar to such a claim: Dickman v Holley; Estate of Simpson [2013] NSWSC 18, White J, at [136].

In this case, it appears to be not in issue that the Plaintiffs were unaware of the death of the deceased until about February 2016. Accordingly, delay in bringing the application to revoke the 2006 Will is not relevant. (This does not mean, however, that the delay in producing the original 2007 Will, or referring to it in the Facebook message, is each not a relevant fact.)

The Court may revoke the grant of the 2006 Will, or the 2007 Will, either because the grant of Probate of the 2006 Will was made and subsequently, a later Will was found, or because the grant of Probate of the 2007 Will was made irregularly: The Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786.

As stated, there is an issue regarding whether the 2006 Will was revoked by the 2007 Will.

A will, of course, must satisfy the requirements of both formal and substantial validity. Formal validity depends on compliance with statutory requirements such as compliance with s 6 of the Succession Act as to execution. Substantial validity depends on matters such as testamentary capacity and knowledge and approval.

The Plaintiffs, as propounders of the 2007 Will, bear the ultimate onus of proving that the 2007 Will was the last will of a free and capable testatrix: Bailey v Bailey (1924) 34 CLR 558, 570-572; Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289-290; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 704-707. They must prove not only testamentary capacity but also that the deceased knew and approved the contents of the 2007 Will at the time it was executed so that it can be said that she comprehended the effect of what she was doing. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton [2005] WTLR 99, Peter Gibson LJ, at 108, and Chadwick LJ at 117; Perrins v Holland [2009] EWHC 1945, Lewison J at [45].

The fact that there is no issue that the deceased had testamentary capacity does not, necessarily, imply that she knew and approved the contents of the 2007 Will.

If there is a challenge to the validity of a will on the grounds that there is a want of knowledge and approval, the person making that allegation bears an evidential burden of putting the relevant ground of challenge in issue. He, or she, does not need to prove anything, but merely to adduce sufficient evidence to require the Court to decide the issue in question. If the evidence adduced by him, or her, or otherwise arising in the case, is of sufficient cogency, the Court, when assessing that evidence as a whole, decides whether the propounder of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.

In relation to knowledge and approval, the general position has been explained by Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (20th ed) para 13-23 in the following terms:

However, in this case, Michael has asserted that none of the signatures on the 2007 Will is that of the deceased, and that what are said to be her signatures were forged. For the reasons set out, I do not propose to apply the presumption that arises based upon any discharge of the burden of proof on due execution and testamentary capacity.

In addition, it is undisputed that the persons who prepared the 2007 Will take a substantial benefit under its terms and all of the beneficiaries were present when the 2007 Will was said to have been signed. If a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought, generally, to excite the suspicion of the Court, and calls upon the Court to be vigilant and jealous in examining the evidence in support of the instrument. Unless the suspicion is removed, and the Court is judicially satisfied that the paper propounded does express the true Will of the deceased, the Court ought not to pronounce in favour of its validity. The suspicion may be roused in varying degrees depending on the circumstances and what is needed to dispel those suspicions will vary accordingly: Fuller v Strum, Peter Gibson LJ, at 1107. In other words, the extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case: Re Martin; MacGregor v. Ryan [1965] S.C.R. 757, at 766.

The relevant principles were stated authoritatively by the High Court in Nock v Austin [1918] HCA 73; (1918) 25 CLR 519. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour said (at 528):

In Fuller v Strum, at [33], Peter Gibson LJ summarised the position this way:

In Tyrrell v Painton [1894] P 151 at 157, Lindley LJ had observed:

Davey LJ, at 159-160 wrote:

These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand Bahadur [1928] UKPC 98. Also see, Leona Johnson (Deceased) [2015] SASC 51 at [7].

Traditionally, a two stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to “excite suspicion” on the part of the Court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not “excite suspicion”, then the Court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity. If the circumstances do arouse the suspicions of the Court, then the question is whether scrutiny of those circumstances by the Court dispelled those suspicions.

Lord Neuberger in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430, at [22], put the test differently:

In other words, have the Plaintiffs discharged the burden of establishing that the deceased knew and approved the contents of the 2007 Will?

I should also refer to the judgment of Lewison LJ in Simon v Byford [2014] EWCA Civ 280 at [47]:

Thus, when considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec’d) [1950] 2 All ER 117, at 121.

In Thompson v Bella-Lewis [1997] 1 Qd R 429; [1996] QCA 27 at 451, McPherson JA (dissenting in the result) said of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution, or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death".

In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA, at [48], confirmed:

In this case, it appears that one, or other, of the Plaintiffs retained the 2007 Will and that she participated in its preparation and execution. She did not disclose the 2007 Will to Michael at the first opportunity following when she found out about the death of the deceased.

On the question of the delay in producing the 2007 Will to John, I refer to what was said by Ormiston JA in McKinnon v Voigt [1998] 3 VR 543, at 562-563:

And at 564-565:

In reaching conclusions about the evidence on the topic of the validity of the 2007 Will, I also remind myself of what was said by Bryson AJ in Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326 at [29] and at [36]:

And by what Brereton J said in Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 at [26] – [30]:

I also note that the claims by the Plaintiffs are really claims against the deceased's estate. Bryson AJ in Zahra v Francica [2009] NSWSC 1206 at [1] wrote:

In Tobin v Ezekiel, at [55], Meagher JA noted:

Despite the above statements, next, I shall deal with the defence raised by Michael regarding the 2007 Will not being the authentic Will of the deceased, which was clarified to mean that the signatures purporting to be of the deceased on the 2007 Will were not, in fact, her signatures.

Michael did not adduce strong and cogent evidence to support the very serious allegation made in the Defence. In particular, there was no expert evidence going to a comparison of the deceased’s signatures, or to pointing out similarities, or differences in those signatures, and leaving the Court to draw its own conclusion: Duong v Vo [2009] WASC 210, at [129].

I have tried to make a comparison between the signatures that are disputed and the admitted signature on the 2006 Will. As put by Michael, the four signatures demonstrate a range of variations from each other and from the deceased’s signature on the 2006 Will.

There is only one specimen signature of the deceased in evidence, being her signature on the 2006 Will, which is not the subject of any dispute. I am unable to conclude, by mere comparison, whether the variations of the signatures are other than natural variations. I also bear in mind that the signatures were made at different times and under different conditions.

There were three specific matters, however, that have caused me some disquiet regarding the evidence called by the Plaintiffs as to the circumstances surrounding the preparation and execution of the 2007 Will.

The first is found in the evidence of Ms Seelin upon whose affidavit the Defendant relied. I have set out the terms of her affidavit earlier. She was not asked any questions about the matter raised by her concerning the date when the street number was added to the deceased’s address. If the year in which the number of the address of the real estate owned by the deceased was identified was 2009, and if before that year the address did not include a number, then the 2007 Will could not have been written on the date it bears, since the address of the deceased, at the commencement of the Will, bears that number as part of the deceased’s address.

The second relates to the failure to make any reference to the 2007 Will in the Facebook messages to which reference has been made. Also important is the offer to Michael of money for part of what Cassandra thought was in the estate. By the date Cassandra wrote the Facebook message, she was aware that the deceased and John had both died. Whilst the revelation about their deaths might have been a shock initially, by the time of the Facebook message, the immediate shock seemed to have passed, as in the message there is no suggestion of still being in shock.

It is difficult to conceive of any reason for not having disclosed the existence of the 2007 Will at that time, or shortly thereafter, and to instead offer money to purchase what were some of the personal possessions of the deceased. If the 2007 Will had been created in 2007, Cassandra would have been well aware, for some years, that the deceased’s personal possessions had been gifted to the five grandchildren in that Will.

The third is the failure by Kim to reveal to Michael in a telephone conversation in February 2016, that there was a Will of the deceased of which she was aware. The following passage, in cross-examination, at 1T50.29 – 1T50.22 is relevant:

It is difficult to accept the explanation of being in shock as the reason for failing to say anything about a Will. There is no evidence that Kim’s relationship with the deceased, or with John, was a particularly close one. That she could not remember when she had last seen the deceased prior to her death demonstrates that is so. That she asked “What happened to there [sic] property?” is also telling.

However, in determining the question, I must consider, in addition, the other evidence relevant to the issue, which, in the present case, is the evidence of four witnesses, each of whom states that she was present and observed the deceased sign the 2007 Will.

I must also consider s 140 of the Evidence Act which requires me to find that the case of a party is to be proved on the balance of probabilities, and in being so satisfied to take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. I must also consider that Michael did not cross-examine Danielle.

When I consider all of the evidence, and remembering s 140, I am unable to conclude that the deceased's signature, in each case, on the 2007 Will, is a forgery. Such a positive finding would carry with it a finding of perjury, an attempt to pervert the course of justice by all of the Plaintiffs and by their mother: Ortner v Mewjork - Estate of Shing [2009] NSWSC 1381, at [27], and a criminal offence, namely making a false document with the intention that the person who so made it or another person will use it to induce someone to accept the document as genuine, and because of the document being accepted as genuine, to obtain any property or financial advantage: Crimes Act 1900 (NSW), s 253. It would also involve conspiracy and collusion of significant proportions, involving the four witnesses who gave evidence about the circumstances in which the 2007 Will is said to have been made.

The positive finding that the deceased’s signatures on the 2007 Will were forged is not necessary since the genuineness of the deceased's signatures was said to be an issue, as some of the matters to which I have referred do cast doubt about execution of the 2007 Will by the deceased, and because of my disquiet about the events that are said to have occurred at the time of the preparation and execution of that Will. The Court must remain vigilant, and cautious, to ensure that the purported 2007 Will truly represents the deceased’s testamentary intentions and that she knew and approved of its contents. That is particularly so since the 2007 Will provides for persons who appear to have no special claim on the deceased's bounty.

It is important to note that the Court is not engaged in some form of approval or disapproval of the dispositions made in the 2007 Will. The Court cannot substitute its own judgment for that of the deceased in relation to what would be a proper disposition of her estate. The task is to assess the evidence and to reach conclusions as to the facts on the balance of probabilities, remembering that the question is whether the contents of that Will do truly represent the deceased’s testamentary intentions.

On the totality of the relevant evidence, I am not affirmatively satisfied that the Plaintiffs have established that the deceased knew and approved of the 2007 Will. I have pointed to the lack of detailed evidence in the affidavits of the four witnesses relied upon by the Plaintiffs; to the failure to call the attesting witness, Ben, and also the other two grandchildren, who were said to be present at the time the instructions, for, and the preparation and the execution of, the 2007 Will occurred; to the fact that the deceased could not read English; to the significant change from the 2006 Will, and to the evidence of independent witnesses, each of whom gave consistent evidence of conversations with the deceased, both before and after the 2007 Will was said to have been prepared and executed, concerning what each was told about the deceased’s relationship with her grandchildren and the deceased’s complaint of having had to regularly provide financial assistance to Keith. I have also referred to the apparent closeness of the relationship of the deceased and John.

Furthermore, there is no evidence to support the reason ascribed to the deceased for the change in her testamentary intentions. It was not suggested that, in 2006, John was not in the relationship with the woman who the deceased is said not to have liked. The concerns that would have to be assuaged are magnified when the terms of the 2007 Will, in all the circumstances of the case, are such to make it appear somewhat irrational, particularly bearing in mind the closeness of the deceased’s relationship with John (which relationship appears to have continued until the deceased’s death) who was omitted, entirely, as a beneficiary.

Finally, I note that the only witnesses available for the Plaintiffs are some of those who have an interest in the estate under the 2007 Will in circumstances where that Will was produced in secret. The evidence of these four witnesses, going to instructions said to have been given for the 2007 Will and that the Will was said to have been read over to the deceased, is not enough to remove the suspicions and to find that the 2007 Will is the last valid Will of the deceased.

I have also referred to the evidence that the 2007 Will was allegedly read over, not once but so it was said by Kylie, twice, by one of her grandchildren, a beneficiary under the Will. This alleged occurrence was not referred to in any of the affidavits.

Proof that the 2007 Will was read over to the deceased does not, necessarily, establish "knowledge and approval". The evidence of those Plaintiffs and Kim, who is closely related to them, must be approached with caution because of its self-serving nature. The evidence from the Defendant and his witnesses provide additional reasons to doubt the reliability of the evidence of the Plaintiffs and Kim.

The Plaintiffs have failed to discharge the burden of showing that the deceased knew and approved of the terms of the 2007 Will, and there must be an order pronouncing against its validity.

In these circumstances, I order that: