Alan Yazbek v Ghosn Yazbek

PROCEDURAL CONTEXT

1. Demetrios Katsikas ("the deceased"), aged 55 years, died without issue on 24 February 2015, ostensibly intestate. He was, for many years, a paraplegic as a result of a motor vehicle accident.
2. On 18 September 2015 the Court granted letters of administration of the estate to the defendant, the widow of the deceased.
3. The inventory of property annexed to the grant discloses an estate with an estimated gross value of about $1.945 million including, as the deceased's principal asset, a residence at South Maroota. The deceased apparently died with few debts, with the consequence that his net estate can be assumed to have an approximate value of the same order.
4. By operation of section 111 of the Succession Act 2006 NSW, if it be correct to say that the deceased died intestate, the whole of his estate passes to the defendant as his widow.
5. The deceased and the defendant were married on 17 July 2007.
6. By operation of section 12 of the Succession Act 2006, that marriage revoked a will dated 7 May 1985 ("the 1985 will") earlier made by the deceased.
7. According to the terms of the will: 1. the deceased's father, George Katsikas (the plaintiff) was appointed executor, with a substitutional appointment in favour of the deceased's brother, Christopher Katsikas ("Christopher"). 2. the deceased's estate was to be divided between: 1. the deceased's parents (the plaintiff and Chrysanthe Katsikas), as joint tenants, as to a one half share; and 2. Christopher, as to the remaining half share.
8. By a statement of claim filed on 19 October 2015, the plaintiff contends that the deceased did not die intestate because, although the 1985 will was revoked by marriage, it was revived (by operation of section 15 of the Succession Act) by an email dated 25 February 2011 (the disputed email) ostensibly sent by the deceased to Christopher.
9. The plaintiff contends that that email and the 1985 will instrument should, together, be admitted to probate (pursuant to section 8 of the Succession Act) as an "informal will".
10. The statement of claim alleges (by paragraph 9) that the deceased manifested his intention to revive the 1985 will, not only via the 2011 email, but also by statements made orally in discussions with Christopher.
11. The plaintiff claims an order that the 1985 will and the email, together, be admitted to probate via a grant to him in solemn form.
12. By an amended defence filed on 18 March 2016, the defendant contends that the deceased was aware that his marriage revoked the 1985 will, and that he deliberately died intestate in the knowledge that the effect of his doing so would be to pass the whole of his estate to her. She relies on evidence of her conversations with the deceased, set in the context of tension between her and her in-laws.
13. By paragraphs 9, 9A and 9B of the amended defence, the defendant: 1. denies that the deceased sent the disputed email, propounded by the plaintiff; 2. disputes that the email, if sent, was intended to operate as a testamentary instrument; and 3. alleges: (i) that the email is attended by "suspicious circumstances" (implicitly invoking Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 and Tobin v Ezekiel (2012) 83 NSWLR 757); and (ii) that the deceased did not "know and approve" of the contents of the email.
14. The defendant's "suspicious circumstances" defence does not seem wholly apt in a case in which disputation focuses on the authenticity, and construction, of a disputed email said to have constituted a document "intended" to "form a will". It has added little to the parties' debate.
15. The plaintiff bears the onus of proving the documents he propounds as a will: Bailey v Bailey (1924) 34 CLR 558 at 570-572. The defendant has put him to proof.
16. The defendant has not pleaded an allegation of fraud against the plaintiff, Christopher or any other person. In compliance with an obligation of fairness identified with Browne v Dunn (1894) 6R 67, the defendant's counsel confronted Christopher in cross-examination with a proposition that Christopher had concocted the disputed email; but the defendant has not assumed, and does not have, an obligation to prove that the email was concocted. She relies, not on her proof of an affirmative case of fraud, but upon an alleged failure on the part of the plaintiff to prove that the author of the disputed email was the deceased: Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 at [26]-[30].

THE DISPUTED EMAIL

1. Omitting introductory formal details, the disputed email (the "long version" of an email timed as sent and received at 4.09pm on 25 February 2011) was in the following terms (with grammatical warts and all): "Hi Chris, Please check attached letter edit if you need to. (I updated the one from pt clare) I was hoping this agent would have sold it [a property known as 120 Norfolk Road, North Epping] by now as I want the money to pay the olds all the stuff going back to my accient. I also need to fix you up for norfolk rd and get a shed going here. Been thinking about what we talked about the other night, transferring the house what about stamp duty? I don't know if I want her back here I cant handle her shit yelling at me been good since she took off but difficult to get stuff dne when Glen goes to work. Did you read Sues letter should I ask Kelly about it? She wants to come back. She fucken left Chrlie and got half the house but gave it back to him what the score on that? she didn't even ask me about it. she keeps asking me to do a will with her but Shes not to get anything when I go mum has my will anyway and that is how its going to be. I'll ring in the next day or so. Thanks, Deme"
2. The introductory formal details not here extracted comprised identification of an email address of the deceased as sender; identification of an email address of Christopher as recipient; identification of the time and date of the email; a reference to an attachment as "120Norfolk.doc"; and identification of the subject of the email as "120 norflok" [sic].
3. The attachment referred to in the email was an unsigned document in the following terms: "CENTURY 21 EPPING 2/123 Midson Road EPPING NSW 2121 24/02/2011 Dear Ben Goudarzi, I wish to cancel our selling agreement of 120 Norfolk Rd North Epping effectively immediately, could you please return the key to George [the plaintiff], remove all advertising material and all internet advertising. Thankyou for your efforts. Regards, Deme Katsikas 120 Norfolk Rd North Epping"
4. The reference in the email to an "accident" (misspelt) is consistent with the fact that, many years before the deceased and the defendant met, the deceased was injured in a motor accident which rendered him a paraplegic.
5. The reference in the email to "the olds" can be taken to be a reference to the deceased's parents, with whom he (and, for a time after the commencement of a de facto relationship which led to marriage, the defendant) had lived.
6. The reference in the email to "Sues letter" is consistent with a letter dated 22 February 2011 addressed by the defendant (Suzanne Katsikas) to the deceased and a business partner (Mr Glen Taylor) who was, at about that time, staying with the deceased in the matrimonial home of the deceased and the defendant. The letter was written at a time when the deceased and the defendant were living separately as happened from time to time in a stormy relationship. Mr Taylor's presence in the matrimonial home was uncongenial to the defendant, a message uncompromisingly conveyed by the letter. The letter expressed a wish on the part of the defendant for reconciliation with her husband, coupled with a threat of Family Court proceedings if the deceased did not conform to a deadline of 6 March 2011 set by the defendant.
7. The subject of the email, both in the formal heading and in the first few lines of the text of the email, relates to attempts by the deceased to sell the property known as 120 Norfolk Road, North Epping. The reference in the first line of the email to "pt clare" is a reference to another property the subject of an earlier sale.
8. The reference in the text of the email to "Glen" can be taken to be a reference to Mr Taylor.
9. The reference in the text to "Charlie" is ostensibly a reference to the defendant's first husband, and the terms of a property settlement between him and the defendant which the deceased evidently thought (but the defendant denies) involved a surrender of property by the defendant in favour of her ex-husband.
10. The reference to "Kelly" can be taken to be a reference to the surname of a solicitor who had acted for the deceased many years earlier and with whom Christopher says he had remained in contact.
11. In these proceedings, acknowledging the contextual importance of what earlier appears, the critical passage appears towards the end of the text: "… she [the defendant] keeps asking me [the deceased] to do a will with her but Shes not to get anything when I go mum [the wife of the plaintiff and mother of the deceased and Christopher] has my will anyway and that is how its going to be."
12. That passage is said to be sufficient, in context, both to constitute an informal will and to revive the deceased's 1985 will.
13. A problem with acceptance of the email as an authentic communication of the deceased is that it comes in a shorter version (complete with the attachment) in which the text begins and ends with the first sentence: "Please check attached letter edit if you need to. (I updated the one from pt clare)"
14. The two versions are identical (both in their formal details and in their text), but for inclusion in the long version of the narrative that begins, "I was hoping…" and ends, "… in the next day or so". The two versions are each expressed to have been sent from the same email address, to the same email address, at the same time, with the same attachment and the same formal subject heading "Norfolk" misspelt.

THE EXPERT INFORMATION TECHNOLOGY EVIDENCE

1. Each of the plaintiff and the defendant retained an IT expert to undertake a forensic examination of the emails.
2. The plaintiff's expert (Mr P Campey) examined a computer device which, for convenience, can be identified as that of Christopher but which, Christopher explained, was owned by his family company.
3. The defendant's expert (Mr M Khoury) examined that same device and, besides, three other devices owned by the deceased.
4. The plaintiff's expert did not examine the deceased's devices but, when pressed, he pragmatically accepted as correct the findings of the defendant's expert with respect to them.
5. The experts prepared a joint report (Exhibit C7) and gave concurrent oral evidence at the hearing of the proceedings.
6. The defendant's expert was recalled towards the end of the hearing to deal with a contention then, but not earlier, advanced on behalf of the plaintiff, that the attachment to the long version of the email may not have been attached to the short version. That contention was based upon a particular reading of an oblique reference to the attachment in the defendant's expert's report. Upon his recall to the witness box, he confirmed, and I accept, that the attachment was attached to both versions of the email as examined by him.
7. By reference to paragraphs 5, 6 and 7 of the joint report (Exhibit C7), the core points of agreement between the experts are that: 1. the long version of the email was drafted on an "Asus 1000H" computer - the same type as one of the deceased's devices (identified in the evidence as "PC09"). 2. the short version exists on the deceased's device " PC09". 3. the long version of the email does not exist on the deceased's device "PC09".
8. Neither expert, upon examination of Christopher's (currently available) device, found a copy of the short version of the email or evidence that the long version of the email found there had been the subject of manipulation.
9. All this suggests that the long version of the email was not prepared on a computer device of the deceased; but that the short version was prepared on and sent from a computer device of the deceased; and it invites the question whether, upon receipt by a device of Christopher, the short version was edited by the addition of the longer narrative in the text.
10. Could manipulation of the short version of the email have been effected on Christopher's device(s) without leaving a detectable trace? By reference to paragraph 10 of the joint report (Exhibit 7), one can identify the critical point of difference between the experts: 1. The plaintiff's expert agrees with the proposition that "if a user were to attempt to tamper with an email message, evidence of such tampering would be visible inside the email". He reasons that the level of technical knowledge required to edit an email message without leaving evidence of tampering vastly exceeds the skills of a typical user. 2. The defendant's expert disagrees with the stated proposition. He reasons that it is possible to edit an email message without leaving any evidence of tampering.
11. The fact that neither expert, upon examination of Christopher's device, found a copy of the short version of the email or evidence that the long version had been the subject of manipulation may be complicated by the fact that Christopher's currently available computer device is not the one which he had at the time the disputed email is said to have been received by him. The information on that old device (since discarded) was, in 2013, transferred to a new device (also since discarded) from which information was transferred to the current device in 2016. Whether this is of significance is debatable.
12. Another complication, productive of speculation, is that, before Christopher's current device was examined, there had been secure deletions of information which would otherwise have been stored on the device. Christopher denies that anything germane to the case was deleted or that he is technically savvy enough to have done anything sinister. The content of the information deleted is not recoverable. Whether this is of significance is, again, debatable.
13. The plaintiff's evidence is deficient insofar as his expert did not personally examine the deceased's computer devices and he was, pragmatically, compelled to accept the correctness of the defendant's expert's analysis of those devices.
14. Pressed, upon an assumption that that analysis was indeed correct, to express an opinion as to which of the long version of the email and the short version was the more likely to be the authentic email, he reluctantly conceded that the short version was the more likely to be authentic.
15. A problem with acting upon such a concession is that it was based upon an assumption with which the plaintiff's expert, not having examined the deceased's devices, was uncomfortable.
16. In summary: On the technical evidence, the short version of the email (but not the long version) was sent by a device of the deceased; but it appears, arguably, not to have been received by Christopher's device in that form. Christopher's device presents as if Christopher received the long version of the email, but not the short version. It may be that the short version was received by a device of Christopher and edited so as to take the form of the long version; but there is no clear, undisputed evidence that that could have been done by a person of Christopher's technical skills.
17. In this unsatisfactory state of the evidence, each side invites the Court to look to incidental, contextual facts.
18. The plaintiff points to the disputed text of the long version of the email and submits that it is factually correct, supporting an inference that it must have been drafted by the deceased himself.
19. The defendant points to the circumstances in which Christopher says that the long version of the email first came to his attention, to an apparent indifference on his part in having the deceased's computer devices examined by the plaintiff's expert, and to Christopher's resistance to any examination of his computer devices by the defendant's expert.

CONSIDERATION OF THE AUTHENTICITY OF THE DISPUTED EMAIL

1. At one point during the final hearing, counsel for the plaintiff relied upon statutory presumptions, for which section 161 Evidence Act 1995 NSW provide, about the sending and receiving of an "electronic communication" such as an email. However, those statutory presumptions do not apply if (as is here the case) evidence "sufficient to raise a doubt" about the presumptions is adduced.
2. The linchpin of an operative "doubt" is found in the existence of competing emails, each with an identical transmission time, which are unlikely, because of those identical transmission details, both to be authentic. Section 161 must be put aside. It is of no assistance upon a determination of the authenticity of the two versions of the disputed email.
3. Given (as the plaintiff accepts) that the plaintiff bears the onus of proving that the disputed (long) email is an authentic document of the deceased, the technical evidence is such that his case must fail on that account alone. Accepting (as I do) the defendant's expert's analysis of the deceased's computer devices, and noting that (at best) uncertainty attends the plaintiff's evidence that only the disputed (long) version of the email was received by Christopher, it is more probable than not that the text on the disputed email not found on the short version of the email was not written by the deceased.
4. Some, if not all, of the statements attributed to the deceased have objective corroboration: the deceased and the defendant notoriously had a stormy relationship; there is a letter written by her of the type noticed in the email; on her own evidence, the defendant on at least four occasions pressed the deceased to make a will.
5. Yet, even if the disputed text could be said to represent the state of mind of the deceased about statements made in the text, that would not, on the whole of the evidence, overcome doubts about the authenticity of the email. One cannot exclude the possibility that what are recorded as statements attributed to the deceased could have been constructed from knowledge of his views on their subject matter. He was evidently not shy about speaking his mind; Christopher deposes to conversations with him in terms similar to statements attributed to him in the disputed email. Nor is the language attributed to the deceased in that the email (in all senses, vulgar) proven to have been so uniquely his as to compel an attribution of authorship to him unqualified by a risk of imitation.
6. Doubts about the authenticity of the disputed email are compounded by a consideration of the circumstances in which Christopher says the document first came to his notice. Despite evidence (in paragraphs 15-17 of his affidavit sworn 4 February 2016) to the effect that he discussed the email with the deceased a couple of days after the date it bears, his oral evidence (confirmed at Transcript pages 254-255) is that he does not now specifically recall noticing the email on or about that date. Nor does he recall ever having discussed with the deceased, or taken any action referable to, the draft letter attached to the email. He says he first discovered the email when, having been alerted by lawyers to the fact that the deceased's will was revoked by marriage, he, at the suggestion of a barrister who at that time provided advice to the plaintiff and himself, searched his computer for any email of the deceased that might arguably have constituted an informal will. What he looked for, he found.
7. Christopher's lack of concern about whether the deceased's computer devices were the subject of examination, coupled with his strong (recurrent) opposition to examination of his own device (observed in Katsikas v Katsikas [2016] NSWSC 1490), is worthy of notice but not, of itself, determinative. It is insufficient to ground an inference that Christopher behaved as he did because he was conscious of wrongdoing on his part in creation of the disputed email.
8. I am unable, on the whole of the evidence, to attribute authorship of the disputed email to any particular person. However, I incline to the view that it is a concoction, and I am comfortable in my conclusion that the plaintiff has not discharged the onus he bears to prove the deceased's authorship of it.
9. This conclusion is reinforced by my acceptance of evidence of the defendant to the effect that, on more than one occasion, she asked the deceased to make a will (so as to deal constructively with conflict between her and his parents) only to be told by him that there was no necessity for a will because, their marriage having revoked his will, his intestate estate would pass to her.
10. Acceptance of the defendant's evidence increases the unlikelihood that the deceased would have written the last lines of the disputed email or, if he did write them, that he intended them to be taken as a binding expression of testamentary intention.
11. I do not exclude the possibility that the deceased may have made contradictory statements, on the one hand, to the defendant and, on the other, to his brother and parents. Evidence of Christopher and his mother about statements made by the deceased to them about his testamentary intentions suggest that that may have occurred here. It is not unknown for warring factions within a family to be kept at bay - with expectations managed now with a view to later disappointment - by everybody being told what they want to hear, deferring disputation until death demands that uncomfortable truths be confronted. If (as I find) the deceased knew that his will was revoked by marriage it was open to him to benefit the defendant (by dying intestate) without direct, open confrontation with his parents and brother (beneficiaries under a will revoked by operation of law).
12. Evidence about conversations with the deceased, on either side of the record, need to be approached with caution, given his unavailability to challenge them: Plunkett v Bull (1915) 19 CLR 544 at 548-549. Contextual factors to be taken into account in assessing the evidence include the volatile nature of the deceased's relationships; the fact that he maintained his relationship with the defendant notwithstanding their spats; and the existence of tension between the defendant and the deceased's parents.
13. Contrary to the plaintiff's submissions, I do not regard it as improbable for the defendant, in these circumstances, to have pressed the deceased to make a new will (whatever its terms) in order to bring certainty to his, and her, affairs. Nor is it improbable that, with an eye on poor relationships within his family, the deceased took the path of least resistance, playing both sides of the street, by letting off steam about the defendant with his brother and mother and providing assurance to the defendant about her being looked after. That the deceased was a person of passionate tendencies is illustrated by his refusal to invite the plaintiff (his father) to his wedding, at which his brother was his best man and his mother was present.
14. The relationship between the defendant and the deceased survived several years - before and after marriage - during which the defendant (in common with his mother) provided close physical care required by the deceased by reason of the disabilities he suffered as a paraplegic. There was nothing untoward in her pressing him to make a new will, especially as he had many years earlier told her that the will he did have favoured his "nieces and nephews", an expression I take to have been an off-hand (not literally correct) reference to his birth family. As his wife, and carer, she was a natural object of his testamentary bounty. On the plaintiff's case, he maintained a close personal, physically dependent relationship with her - as a wife and carer - but was nevertheless determined that she should be totally unprovided for on his death. Given that he maintained his relationship with her until death, I am inclined to accept her evidence of conversations with him in which he explained away the necessity for a new will, relying upon her right of inheritance as his wife.

THE SUCCESSION ACT, SECTION 8

1. Upon an assumption that the deceased was in fact the author of the disputed email, the question remains: Does it satisfy the requirements of section 8 of the Succession Act for admission to probate as an "informal will" (sufficient to revive his will dated 7 May 1985)?
2. This question must be answered in the negative, essentially because, on the proper construction of the disputed email (reinforced by his repeated disclaimers of the will in conversations with the defendant), the email does not fit the description of a document that the deceased intended to form his will.
3. Even if (which, in light of the deceased's discussions with the defendant, is doubtful) the email is taken to evidence a sincere expression of the deceased's testamentary intentions, I am not satisfied that the deceased intended the email (whether read with or without the will revoked by marriage) to be a will. It is not enough that an informal document express a person's then intentions as to how he or she would like his or her estate to be dealt with; the person must intend that the document have a present operation as his or her will: Tristram, Application of Eunice Helen [2012] NSWSC 657 at [3].
4. The fact that a statement of testamentary intention appears in a document (in this case, an email) brought into existence for another, non-testamentary, principal purpose (in this case, a purpose relating to a prospective sale of property) is not, of itself, an impediment to the document, so far as material, being given testamentary effect. However, the form of the disputed email, and the context of the statement of testamentary intentions in it, are such as to cast doubt on the proposition that the email was intended either to operate as a will or to revive the deceased's will.
5. The deceased may have been mistaken about the then current status of his will; a mistaken belief which falls short of an intention, by the email, to revive the will. Or (as evidence of the defendant about her discussions with the deceased suggests) he may have been telling his brother what he thought his brother wanted to hear, not intending his disavowal of the defendant to be legally operative. Section 8 requires that the deceased must have intended the email to have a present operation as a will. The email does not meet that requirement.
6. Even if (contrary to my findings) authorship of the disputed email can be attributed to the deceased, the elements of section 8 of the Succession Act required to be present for a document to be admitted to probate as an informal will are not present. Accordingly, for this reason also, the plaintiff's claim must fail. The disputed email does not constitute a section 8 "will". There is no basis upon which, by reference to section 15(1) of the Succession Act, the deceased's 1985 will was revived. The deceased died intestate.

CONCLUSION

1. Accordingly, the plaintiff's statement of claim must be dismissed.
2. Subject to allowing the parties an opportunity to be heard as to costs, I propose to make orders to the following effect: 1. Order that the plaintiff pay the defendant's costs of and incidental to preparation of the affidavit of Michael Khoury sworn 24 April 2018 (including Mr Khoury's expenses for attendance before the Court for cross examination on the affidavit) on the indemnity basis. 2. Order that the plaintiff otherwise pay the defendant's costs of the proceedings (including any costs thrown away by adjournment of the proceedings on 17 October 2017) on the ordinary basis.
3. The current proceedings having been dismissed, the defendant invites the Court to dismiss related proceedings in which she claims family provision relief under chapter 3 of the Succession Act.

EDITORIAL NOTE (7 May 2018)

1. On 3 May 2018, after hearing from counsel, Lindsay J made orders to the following effect on the application of the defendant: 1. ORDER that the statement of claim be dismissed. 2. ORDER that the plaintiff pay the defendant's costs of the proceedings: 3. a) on the ordinary basis, up to and including 23 February 2016; and 4. b) on the indemnity basis, thereafter. 5. ORDER that any of the defendant's costs not recovered from the plaintiff are to be paid out of the estate of the deceased. 6. NOTE that, consequentially upon dismissal of these proceedings, the proceedings numbered 2016/00059467 are to be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2018