Burnside v Mulgrew & Anor; Re the Estate of Doris Grabrovaz

Supreme Court of NSW|2007-04-27|Before: Brereton J, Powell J, Mr J

CITATION : Burnside v Mulgrew & Anor; Re the Estate of Doris Grabrovaz [2007] NSWSC 550

HEARING DATE(S) : 24, 26 & 27 April 2007 JURISDICTION : Equity Division Probate List

DECISION : Find for earlier Will. Plaintiff's costs out of estate. No order as to first defendant's costs.

LEGISLATION CITED : (NSW) Wills Probate and Administration Act 1898, s 7

Cooper v Bockett (1843) 3 Curt 648; 163 ER 855; (1846) 4 Moo PC 419, 13 ER 365 Harris v Knight (1890) 15 PD 170 Nicholas v Penn [2004] WASC 227 Owen v Williams (1863) 32 LJPM & A 159 Public Trustee v Annous, Estate of Bader Ali Taleb (Powell J, 31 July 1992) Purkess v Crittenden (1965) 114 CLR 164 Re Eger; Helprin v Eger (Powell J, 4 February 1985, unreported, BC8500997 Re Goode, Tibbits & Anor v MacLean (1891) 12 LR (NSW) (Eq) 41 Re Gramp Deceased [1952] SASR 12 CASES CITED : Re Hancock [1971] VR 620 Re Herbert Brothers (1990) 101 FLR 279 Re Pozniak, Morgan v Reuben [2005] NSWSC 766 Re the Will of Kimbell [1969] 1 NSWR 414; (1968) 88 WN (NSW) (Pt 1) 614 Re Unsworth; McLeod v Burchall (1974) 18 SASR 312 Vere-Wardale v Johnson [1949] P 395 Vidal v NRMA Insurance Ltd [2005] NSWCA 390 Wright v Rogers (1869) LR 1 PD 678 Texts: Geddes Rowling & Studdert, Wills Probate and Administration Law in New South Wales Mason and Handler, Probate and Practice in NSW

June Eveline Burnside (plaintiff) PARTIES : Lina Angela Mulgrew (first defendant) Olive Brown (second defendant)

COUNSEL : Mr J E Armfield (plaintiff & second defendant) Mr M V Sahade (defendant)

SOLICITORS : SBA Lawyers (plaintiff & second defendant) Oliveri Lawyers (first defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

100470/06 June Eveline Burnside v Lina Angela Mulgrew & Anor; the Estate of Doris Miriam Ivy Grabrovaz JUDGMENT (ex tempore) 1 HIS HONOUR: The deceased Doris Miriam Ivy Grabrovaz died on 27 August 2005, leaving property in New South Wales comprising an estate of almost two and a half million dollars. The plaintiff June Eveline Burnside, a friend of the deceased for over 50 years, claims probate of a Will apparently made by the deceased on 13 December 2004, by which she appointed Mrs Burnside her executrix, and gave to her such furniture, contents and effects as she might choose, and also half the residuary estate, the other half being left to the deceased's niece, Olive Brown. The defendant/cross-claimant, Lina Angela Mulgrew, a carer employed by a community care service to provide personal care for the deceased from about early October 2004 until her death, opposes that claim and propounds a Will dated 1 July 2005, the purport of which is to leave the whole estate to Ms Mulgrew. Having been cited to see the proceedings by Ms Mulgrew, Ms Brown elected to be joined as second defendant, and supports Mrs Burnside's claim. 2 The real issues in dispute on the pleadings are: first, due execution of the July 2005 Will - and, in particular, whether the deceased's signature on it is genuine; secondly, knowledge and approval of the July 2005 Will in the light of the circumstances in which it was executed; and, thirdly, although it was not pressed in submissions, an allegation of undue influence in respect of the July 2005 Will. 3 In or about 1930, the deceased was a live-in cook for one Dr and Mrs Davis. In 1954, Mrs Burnside's husband, a medical practitioner, met Dr Davis. In 1962, Dr Burnside established a practice in the same premises as Dr Davis and superimposed on their professional relationship, a close friendship developed between them and their families; the Burnsides became friends of the Davises and also, in the course of that friendship, of the deceased. The deceased inherited from Dr and Mrs Davis a property at Woodlands Avenue, East Lindfield, which she occupied, and which was the major asset in her estate. 4 On 20 April 1993, the deceased appointed Dr Burnside to be her attorney under power. On 10 January 2003, the deceased appointed the Burnsides' son, Mr Mark Burnside, to be her attorney under power. Dr Burnside died in March 2004. 5 The deceased first met Ms Mulgrew in early October 2004. From that time on, Ms Mulgrew attended on the deceased, usually one day per week, although she says more often than that. The deceased was attended by another carer from the same community care service two other days each week; the other carer was usually a June Wilson, who attended Mondays and Wednesdays, Ms Mulgrew attending on Fridays. 6 On 13 December 2004, the deceased made the Will propounded by Mrs Burnside, naming her as executrix and leaving the estate to Mrs Burnside and Ms Brown. Mrs Burnside took the deceased to the office of the solicitor who prepared the Will, but remained outside while the Will was prepared and did not have prior knowledge of what the deceased intended to include in the Will. The solicitor, Mr Fowler, made a file note that recorded that he was quite satisfied of her capacity at the time. He also asked the deceased if she was coerced in any way to make provision for Mrs Burnside, and the deceased answered, "No, definitely not". The deceased signed the Will in the presence of Mr Fowler and a Justice of the Peace from his office, Peta Christine Thompson, who were both present at the same time and who then attested and subscribed her signature on the Will. 7 Not long thereafter, and still in December 2004, the deceased told Ms Olive Brown that she had made a new Will, in which Ms Brown was a beneficiary. 8 According to Ms Mulgrew, in or about April 2005 the deceased mentioned to her that she wished to change her Will to make provision for Ms Mulgrew. Ms Mulgrew says that by this time she was attending the deceased's home nearly every second day, and continued to do so until the deceased's death. Mrs Mulgrew, she says at the deceased's request, obtained a Will kit some time in April 2005 and, subsequently, not long before 1 July 2005, made arrangements for two persons to attend the deceased's home on 1 July to act as attesting witnesses. The attesting witnesses, according to her, were Ms Margaret Wong and Mr Alexander Dover. Neither of them resided close to the deceased; both were selected by Ms Mulgrew; both were friends, either of Ms Mulgrew, in the case of Ms Wong, or of her husband, in the case of Mr Dover. 9 According to Ms Wong, she did not witness execution of the Will at all: Ms Mulgrew attended at her flat at Macquarie Park, having asked Ms Wong to agree to witness "my Will" - that is to say Ms Mulgrew's Will - and Ms Wong says she signed the first page of what was produced to her, there being no other handwriting or signature on the document at that time. Ms Wong's daughter was married on 9 July 2005; the only relevance of this is that it is of some assistance in fixing the date on which any such attendance at Ms Wong's residence could have taken place. 10 The deceased died, aged 90, on 27 August 2005. 11 The evidence establishes that the December 2004 Will was prepared by Mr Fowler on instructions directly from the deceased and was duly executed in conformity with the requirements of (NSW) Wills Probate and Administration Act 1898, s 7. Notice of Intention to Apply for Probate of that Will has been duly advertised. There is no issue as to its due execution, knowledge and approval, testamentary capacity, fraud or undue influence. The December 2004 Will is entitled to be admitted to probate unless, as Ms Mulgrew contends, the deceased made a later valid Will, the effect of which was to revoke the December 2004 Will. 12 The general principles applicable to proof of the July 2005 Will were conveniently summarised by Powell J in Re Eger; Helprin v Eger (Powell J, 4 February 1985, unreported, BC8500997, noted in Mason and Handler, Probate and Practice in NSW at [001]). His Honour said: I have taken the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this to be as follows: 1. the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it; if that is not established, the Court is bound to pronounce against the instrument ( Bailey v Bailey (1924) 34 CLR 558, 570 et seq.); 2. this onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole evidence ( Bailey v Bailey (supra)); 3. the proponent's duty is, in the first place, discharged by establishing a prima facie case ( Bailey v Bailey (supra)); 4. a prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator; 5. unless suspicion attaches to the instrument propounded the testator's execution of it is sufficient evidence of his knowledge and approval ( Guardhouse v Blackburn (1866) LR 1 P & D 109); 6. facts which might well cause suspicion to attach to an instrument include: a. that the person who prepared, or procured the preparation of, the instrument receives a benefit under it ( Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089; Nock v Austin (1918) 25 CLR 519, 528 et seq.); b. that the testator was enfeebled, illiterate or blind when he executed the instrument ( Tyrrell v Painton [1894] P 151; Kenny v Wilson (1911) 11 SR 460, 469); c. where the testator executes the instrument as a marksman when he is not ( Kenny v Wilson (supra)); 7. where there is no question of fraud, the fact that a Will has been read over to or by a capable testator is, as a general rule, conclusive evidence that he knew and approved of its contents; 8. a duly executed Will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding ( Symes v Green (1859) 1 Sw & Tr 401; 164 ER 785; Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671); sanity is to be presumed until the contrary is shown ( Burrows v Burrows (1827) 1 Hagg Ecc 109); 9. facts which, if established, may well provide evidence to the contrary include:- a. the exclusion of persons naturally having a claim on the testator's bounty ( Banks v Goodfellow (1870) LR 5 QB 549); b. extreme age or sickness ( Battan Singh v Amirchand [1948] AC 161; Boreham v Prince Henry Hospital (1955) 29 ALJR 179; Kenny v Wilson (supra)) or alcoholism ( Timbury v Coffee (1941) 66 CLR 277); 10. however, while extreme age ( Bailey v Bailey (supra); Worth v Clasohm (supra)) or grave illness, ( Kenny v Wilson (supra)) will call for vigilant scrutiny by the Court, neither (even though the testator may be in extremis ( In the Goods of Chalcraft dec'd; Chalcraft v Giles [1948] P 222) is, of itself, conclusive evidence of incapacity; it will only be so if it also appears that age, or illness has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property ( Battan Singh v Amirchand (supra); Bailey v Bailey (supra); Worth v Clasohm (supra)). 13 Of significance in this case are the first two propositions, namely first, that the onus of proving that an instrument is the Will of the testator lies on the party propounding it and, if not discharged, the Court is bound to pronounce against the instrument and, secondly, that that burden continues during the whole case and must be determined upon the balance of the whole evidence. Accordingly, the onus of proving that the July 2005 Will is the Will of the deceased lies on Ms Mulgrew and if, on the balance of the whole of the evidence I cannot be satisfied that it is the deceased's signature that appears on it, I am bound to pronounce against it. 14 The Will purports to have been executed on 1 July 2005 by the deceased in the presence of Mr Dover and Ms Wong. Ms Mulgrew says she was also present at the time of execution. A question arises as to whether, in those circumstances, any presumption of due execution applies, either to raise a prima facie case of due execution or, if I were left unpersuaded by the contradictory evidence as to whether or not execution took place as Ms Mulgrew claimed, to tilt that balance in favour of due execution. 15 Even if both attesting witnesses deny due execution, they may be contradicted by other evidence and the Court may, nonetheless, be satisfied of due execution. In Owen v Williams (1863) 32 LJPM & A 159, the plaintiff claimed revocation of a grant of probate in circumstances that, the defendant having propounded the Will, the plaintiff had pleaded that it was not duly executed, and gave notice that he merely insisted upon having it proved in solemn form and did not intend to call evidence when the case came on for trial. One of the attesting witnesses was examined on behalf of the executor, and his evidence was that the Will was not duly executed. Evidence was given to contradict him, but the other attesting witness was not called. The plaintiff, opposing the Will asked for leave to call the other attesting witness, and was granted leave to do so. The hearing was then adjourned, and after the adjournment the Court held that not only was the plaintiff entitled to call the other attesting witness, but the executor was bound to do so. That other attesting witness was then called and, like the first attesting witness, also gave evidence against the Will. Nevertheless the Court believed neither of them, found for the Will and upheld the grant of probate. 16 In Vere-Wardale v Johnson [1949] P 395, Willmer J held that the evidence of attesting witnesses to a Will was not necessarily conclusive, and the Court was competent to receive evidence in rebuttal. 17 In this country, much more recently, Roberts-Smith J in the Supreme Court of Western Australia has taken the same view. In Nicholas v Penn [2004] WASC 227, his Honour found that the evidence of the two attesting witnesses "fell wholly short of proof to any degree that the Will was properly executed" and that "if their evidence be accepted as accurate it would establish that she did not sign the instrument in their presence", but preferred other evidence (namely, that of the plaintiff) as to due execution and said: "The fact that the oral evidence of both attesting witnesses does not support the Will - or even is in conflict with a claim of proper execution, is not necessarily of itself fatal" [Owen v Williams]. Re Hancock [1971] VR 620 makes clear that such other witnesses may be persons who have a beneficial interest under the Will even though they would not be eligible attesting witnesses, that matter going to the weight and not the admissibility of their evidence. 18 In the case of a Will that appears on its face to be regular and duly executed, there is a presumption that the formal requirements for execution have been duly satisfied [Re Unsworth; McLeod v Burchall (1974) 18 SASR 312, 320]. As Bray CJ explained, that presumption has been applied not only in the case of perfect attestation clauses, but also where there have been very unconventional attestation clauses, where the signatures appear in unexpected places, and even where a testator wrote something on the Will after the witnesses had signed it, which they did not see, or which they misunderstood, the Court preferring to presume that it was an innocuous endorsement and not the testator's signature, and even though one witness had sworn that the testator had signed last, and the other that where the signature subsequently appeared was blank when he signed the Will [Cooper v Bockett (1843) 3 Curt 648, 663-4; 163 ER 855, 860; (1846) 4 Moo PC 419, 435-6, 13 ER 365, 371]. Bray CJ went on to explain that the presumption had also been applied where the signature of the testator appeared below that of the attesting witnesses and the witnesses were dead or had forgotten the circumstances, concluding that the presumption should apply, notwithstanding that the signatures appeared in what, at first sight, appeared the wrong order [see also the cases referred to in Geddes Rowling & Studdert, Wills Probate and Administration Law in New South Wales, [7.18], at footnote 70-79]. 19 This presumption is an aspect of the presumption of regularity encompassed in the maxim omnia praesumuntur rite esse acta which, when translated, means everything is presumed to have been done correctly. This was explained by Lindley LJ in Harris v Knight (1890) 15 PD 170 (at 179-180): The maxim, " omnia praesumuntur rite esse acta, " is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such a probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect. 20 In Re the Will of Kimbell [1969] 1 NSWR 414; (1968) 88 WN (NSW) (Pt 1) 614; Helsham J, as the later Chief Judge then was, referred to Harris v Knight in the context of saying that there was clear authority for the proposition that where the signature of a testator and a person signing as attesting witness on a document purporting to be a Will can be proved, then although both witnesses be dead, if the document be in the proper form of a Will, a presumption of regularity may be applied so as to establish the fact of due execution. It is clear in his Honour's statement that proof of the signatures of the testator and attesting witnesses was a precondition to the invocation of the presumption. 21 Similarly, in Re Gramp Deceased [1952] SASR 12, Mayo J said (at 26-27): After the script had been received in evidence, and the signatures of the deceased and two witnesses shown to be their own, the presumption omnia praesumuntur rite esse acta came into operation. The signatures as such were, never, disputed. The burden of proof (to show that the script was not duly executed) undoubtedly passed to the defendants so soon as the fact of the genuineness of the signatures became definite ... 22 Although his Honour was in dissent in the result, that was because of a difference taken in the views as to the facts of the case. The observations of Reed J (at 33), who refers to the propounder of the Will as having proved the signatures as being those of the testator and the attesting witnesses, are entirely consistent with Mayo J's statement of principle. The third judge referred to the judgment of Lord Penzance in Wright v Rogers (1869) LR 1 PD 678, 682 where his Lordship said: The Court ought to have in all cases the strongest evidence before it believes that a Will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of Wills. The presumption of law is largely in favour of the due execution of a Will, and in that light a perfect attestation clause is a most important element of proof.

23 Again, the dictum of the Lord Penzance indicates that proof of signature by the testator and attesting witnesses is a precondition to operation of the presumption of irregularity. 24 In this State, the Full Court upheld a decision of Owen J, the then Chief Judge in Equity, in Re Goode, Tibbits & Anor v MacLean (1891) 12 LR (NSW) (Eq) 41. His Honour relied on the presumption of regularity, and the passages I have cited already from Wright v Rogers, to find that a Will had been duly executed in circumstances where one attesting witness had sworn an affidavit of due execution but had died before the trial, and the other denied due execution, but a beneficiary interested in the Will gave evidence in support of due execution. 25 All of these were cases in which there was an issue as to compliance with the formal requirements for execution. Not one of them was a case in which whether the testator had or had not in fact signed the Will was in issue. It is consistent with the role of the presumption of regularity in wider circumstances that it should apply in cases where what is in question is compliance with formal requirements, but not where there is a substantive issue as to whether the signature on the Will is that of the testator at all. That is also consistent with the fundamental principle, referred to in Re Eger, that the proponent of a Will bears the onus of proving that the signature on a Will is that of the testator. Where the issue is whether or not the Will is that of the testator, the presumption of regularity will not avail the proponent on that issue. 26 It is true that, in Re Pozniak, Morgan v Reuben [2005] NSWSC 766, Palmer J appears to have proceeded on the basis that where forgery was alleged, the onus of proving that the signatures were forgeries fell on the party making that allegation rather than on the proponent of the Will and, indeed, that that onus attracted a Briginshaw standard of proof because of the seriousness of the allegation. But the question of onus does not appear to have been argued before his Honour. What his Honour said, especially at paragraphs [34], [70] and [106], is consistent with the view that a Court should not make an affirmative finding of serious wrongdoing in the absence of comfortable satisfaction that the evidence supports that finding. But it does not follow that the absence of sufficient evidence to make a finding, to the "comfortable satisfaction" standard referred to in Briginshaw v Briginshaw, that there has been fraud or forgery or other serious misconduct, has as its necessary corollary that the opposing case must succeed. 27 This problem is often encountered in insurance cases, when the insurer raises a defence of misconduct by the insured - for example, theft or arson. As Handley JA said in Vidal v NRMA Insurance Ltd [2005] NSWCA 390:

[15] Sometimes an insurer simply puts the insured to proof without having a positive case. At other times, such as here, the insurer may have a positive case, what may be described as a negative pregnant. An insurer is fully entitled to run a positive case, without undertaking anything more than an evidentiary burden of displacing the plaintiff's prima facie case. The question was considered and explained by the House of Lords in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948. This was a marine insurance case where the underwriters denied that the ship had been lost by perils of the sea, and sought to prove that she had been scuttled. Lord Brandon said at 951: … it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.

The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them. [16] This statement applies, with appropriate modifications, to insurance claims for theft, fire and the like. 28 Thus, a defendant's failure to prove fraud on the balance of probabilities, and a fortiori to the Briginshaw standard, does not mean that the plaintiff's case must succeed, but only that the defendant has not satisfied the Court that the plaintiff has engaged in fraud [Purkess v Crittenden (1965) 114 CLR 164, 167-8]. The plaintiff must still prove its case to the requisite standard. 29 Those principles are, in my opinion, equally applicable to the present type of case, in which a defendant, or in this case cross-defendant, raises a case of forgery; so that if I were to come to the view that I was not satisfied to the requisite standard that an affirmative case of forgery had been made out, I might still be left unsatisfied by the cross-claimant that the signature on the July 2005 Will was that of the deceased. 30 As Powell J said in the second proposition in Re Eger, the issue must be determined upon the balance of the whole of the evidence in the case. The evaluation of the evidence in a case of this type involves an assessment of what happened more probably than not. It is a mistake to think that in evaluating the probabilities, one commences with one apparently clear matter of fact and then deduces from that single matter what should be accepted or rejected as being consistent or inconsistent with it. Rather, the Court must look at all of the evidence that bears on the events in issue and, examining all of that evidence, evaluate which version is the more probable. 31 It is convenient to commence this exercise with the Will itself. The deceased's signature on it is in cursive handwriting, not a particularly stylised signature distinct from her ordinary handwriting. There is no doubt that what appears on the Will is an original, in the sense that it is original handwriting, as opposed to a machine reproduction of handwriting. There does not appear to be any suggestion, either in the style of the deceased's signatures where they appear on the Will, or in the expert evidence, that it is a tracing; it must, therefore, be a freehand copy if it is a forgery at all and, if so, at least to the untrained eye, it seems an extraordinarily good one. To the untrained eye, the dissimilarities of the two signatures on the Will which purport to be those of the deceased from the numerous specimen signatures in evidence are slight; unlike, for example, Pozniak, this is not a case in which the differences are obvious. 32 Nonetheless, there are some features which raise curiosity, especially once they are pointed out. The initial "D" in "Doris" on the first page of the Will bears a more elongated and flattened horizontal base stroke than is apparent in the specimen signatures. In the same letter on both the first and second pages of the Will, the final up-stroke comes back across the top of the down-stroke and closes a loop at or about the line of the down-stroke, rather than traversing it across towards the "O" as occurs in virtually all of the specimens. But to my mind, perhaps the most significant difference is that in both the Doris Grabrovaz signatures on the Will there is no break in continuity between the second "R" in "Grabrovaz" and the following "O", whereas in all the numerous specimen signatures, save only one, there is a clear break at this point. That is a curious place for a break in the fluency of a signature to occur, which would not easily be reproduced, but it is a characteristic of the deceased's signature, and the circumstance that it does not appear in the two disputed signatures on the Will is a matter of some considerable curiosity. Further, the spacing between the words "Doris" and "Grabrovaz" in the questioned signatures is greater, and the letters generally wider and flatter, than the relatively narrower and taller script encountered in the specimen signatures. It is difficult, if not impossible, to say to the untrained eye that those variations or discrepancies are not within the wide range of variability demonstrated by the specimen Doris Grabrovaz signatures, but the accumulation of those differences together in the two questioned signatures on the Will is a matter which raises suspicion. 33 As I have said, to the untrained eye it seems that if this is, indeed, a freehand copy of the deceased's signature, then it is an extraordinarily good one, so good as to be unlikely to be achievable. However, a handwriting expert called by the plaintiff, Ms Novotny, says that the quality of the copy was achieved by reduced fluency, evidenced on microscopic examination by an uncommon number of pen lifts and pen stops in the course of the signature, not present in the specimen signatures, and not consistent with the normal pen lifts and pen stops in the specimen signatures. Ms Novotny says that this, coupled with the circumstance that the resumption of the writing after a pen stop appears precisely collocated with the stop, is a very suspicious circumstance. In her report, she said: A comparison of questioned signature Q1.1 and the specimen Doris Grabrovaz signatures revealed similarity in general appearance as well as a number of differences between them, particularly subtle details. The letters in the questioned signature on Q1.1 are proportionately shorter and broader than the letters in the specimen signatures. There is also a wider space between the names "Doris" and "Grabrovaz" in this questioned signature compared with the specimen signatures. I observed numerous interruptions to the fluency of the questioned signature on Q1.1 in the form of pen stops and/or pen lifts. The questioned signature exhibits in the order of 15 such interruptions which, by comparison with the specimen Doris Grabrovaz signatures, are uncharacteristic. Furthermore, the pen stops/lifts occur not only between a number of the letters (as occurs in the specimens) but also in the middle of the structures of a number of the letters. Most of these pen stops/lifts in the questioned signature are not obvious to the naked eye and, in the case of pen lifts, the placing of the pen back on the page at the point where it was lifted can be said to be quite precise. Attached at Appendix F is a chart showing enlarged images captured using a camera/microscope setup to demonstrate the interruptions to the fluency observed in questioned signature Q1.1. Poor pen control in signatures of the elderly and/or infirm tends to manifest itself as obvious interruptions to the fluency of the writing. This is because the writer is unlikely to have the control or ability (nor presumably the need) to conceal the interruptions. Pen stops/lifts such as those observed in the questioned signature on Q1.1 are inherently suspicious and are similar in nature to pen stops/lifts often observed in signatures that are the product of simulation. Similar observations were made with respect to the questioned signature on Q1.2 when compared with the specimen Doris Grabrovaz signatures. I noted also that each of the letters "a" in "Grabrovaz" in the questioned signature are continuous pen strokes from the preceding letters "r" and "v", respectively, whereas the specimen signatures exhibit pen lifts between these letters. Attached at Appendix G is a chart showing enlarged images captured using a camera/microscope setup to demonstrate the interruptions to the fluency observed in questioned signature Q1.2. On the basis of my observations, I concluded that it is highly probable that each of the questioned signatures is the product of simulation. I concluded that there is no evidence to suggest that either of the questioned signatures on Q1 were written by the writer of the specimen signatures and I consider the possibility highly unlikely. 34 To the untrained eye, these pen stops and pen lifts are not so evident, and the lay observer might well doubt, when comparing the questioned signatures with the specimen signatures, that there are so many as Ms Novotny contends. Nonetheless, while I can draw my own inferences from a comparison of signatures and from an examination of those signatures, I must be careful not to substitute my own lay impressions for qualified expert opinion. All the more is that so where this opinion is uncontradicted, and all the more so still where there is evidence before the Court that the cross-claimant sought and obtained an expert report herself, but that report has not been served nor tendered. In those circumstances, I am, at least, authorised to draw an inference that the report obtained by the cross-claimant would not have assisted her case and, in the circumstances of this case, I think it would be wrong to decline to draw that inference. 35 For the cross-claimant, it was submitted that the pen lifts and pen stops could be explained by the deceased taking special care in the course of a "ceremony" to execute her Will to provide a "good quality" signature, as distinct from circumstances in which less care might be taken (such as when signing the vouchers for Ms Mulgrew's services). But as Ms Novotny responded, given that some frailty is evident in the deceased's handwriting - even if she were taking such care, as this hypothesis would suggest - one would not expect that she would be able to particularly and precisely replace the pen at the precise location of the lift when a pen lift had occurred. 36 That, of course, is only the evidence based on an examination of the deceased's signature, which is far from the only evidence in the case. I turn to Mr Dover's evidence. Mr Dover was a friend of Ms Mulgrew's husband, and was one of those chosen by Ms Mulgrew to witness the Will. He says that he attended at the deceased's home, in response to that request, for the first and only time, at or about 4pm on Friday 1 July 2005. His evidence included a description of some aspects of the physical layout of the home, which no one suggested was incorrect. He gave a physical description of the deceased, which no one suggested was inaccurate, and there is nothing to suggest that he had any other opportunity to observe her. He gave a physical description of Ms Wong, which proved to be accurate, in circumstances that he said he had met her only on one other occasion (Ms Wong denied that they had ever previously met, although they had apparently seen each other while waiting outside the Court). 37 His account of the execution of the Will was that when he arrived, he rang the door bell and Ms Mulgrew answered the door. They entered a lounge room and sat down on a sofa where the deceased and another lady, whom he said in his affidavit that he had not previously met, was sitting, and he sat on another couch, next to Lina Mulgrew. He says that after introductions, Ms Mulgrew said, "Doris wants to make changes to her Will". He said he saw a will kit on the table, similar to one that can be purchased from a newsagency, and the deceased then said, "I want Lina to be executor of, and beneficiary of my Will. Lina, can you write the wording on the Will?" Ms Mulgrew then picked up a pen and wrote on the will kit as the deceased was speaking. Although he does not recall the precise words, he says that he recalls that the deceased said something to the effect, "Lina write down 'I give my whole estate to Lina Mulgrew'." After Ms Mulgrew finished writing down the wording on the Will, she handed it to the deceased, who appeared to read it. Ms Mulgrew said, "Are you sure this is what you would like to do?", and the deceased answered, "Yes, that is it". He says he saw nothing to suggest any dictation or coercion, and Ms Mulgrew did not appear to prompt or interrupt the deceased. He says that there was a table, on which there was a small glass jar with several pens in it, probably six or seven. The deceased used one to sign her name on the second page of the Will. Ms Wong and Mr Dover then each picked up a pen and signed the same page. Some conversation then ensued. But at some stage Ms Mulgrew said, "Hang on, we need to sign the first page as well", and all three then did so. 38 I can find nothing internally in Mr Dover's evidence that would cause me to disbelieve or discount it, save that whereas in his affidavit he deposed that he had never met Ms Wong previously and that the first time he saw her was on 1 July 2005, and that she was then unknown to him, he gave in his oral evidence, the following: Q. I suggest to you that you never met Ms Wong on any occasion? A. That's not true. ... I'd met her once before.

39 He was then asked: Q. I just want to be clear that I put to you that you have never met her on any occasion. You deny that, is that right? A. Yeah, I deny that. I have met her once. 40 But his evidence is directly contradicted by that of Ms Wong. She had been a friend of Ms Mulgrew since about 1996, when they met in a hospital, in which Ms Wong was being treated for alcohol dependency and Ms Mulgrew for anxiety. Ms Wong says she has never been to the deceased's home, never met her and never met Mr Dover. She says that some time in June or July 2005 Ms Mulgrew asked her to act as a witness to what Ms Mulgrew said was her own Will, and when Ms Wong asked, "Why don't you get someone else to do it?" responded, "Please do it for me", to which Ms Wong agreed. In the course of her oral evidence, it emerged that this probably occurred some time after Ms Wong's daughter's wedding which, as I have mentioned, was on 9 July 2005. It also emerged that this conversation apparently took place in a telephone conversation prior to the day on which, according to Ms Wong, Ms Mulgrew attended at her Macquarie Park unit. When Ms Mulgrew did attend on Ms Wong, she produced the Will document and Ms Wong signed it - to her best recollection once only, but she concedes possibly twice - in the space provided for a witness' signature. She says that at that time there was no other handwriting or signature on the document. She also conceded that she did not pay close attention to the document that she was signing, but I took her to be unshaken in her recollection that there was no other handwriting on it at the time. Probably more significant is her evidence, which was equally unshaken, that she had never been to East Lindfield, nor ever met the deceased. 41 There is further significance in other aspects of Ms Wong's evidence. After the deceased's death, she says she received a telephone call from Ms Mulgrew who said, "I need to see you about that thing you signed". When asked why, Ms Mulgrew said, "You could come into a lot of money. I need to come and see you". In due course they met and, according to Ms Wong, Ms Mulgrew said, "You know that Will you signed, it wasn't mine, it was for one of those old ladies I worked for. She just died and she doesn't have any living relatives except for a niece in Melbourne. She also has an old friend of about 30 years. I was just at the funeral and the old friend was there. She's contesting the Will. You need to help me - you just need to come with me to come see a lawyer and verify you signed the Will". Ms Wong says she declined, and although Ms Mulgrew responded with an offer to pay off her credit cards and take her on an overseas holiday, but Ms Wong continued to decline. 42 Ms Mulgrew does not agree with the precise terms of the conversations related by Ms Wong, but she does agree that after the deceased's funeral, she spoke to Ms Wong who declined to assist with proof of the Will whereas Ms Mulgrew, on her own version, said that she still relied on her as a witness. 43 Somewhat later, Ms Wong received a letter from solicitors then acting for Ms Mulgrew, and on 12 July 2006 telephoned those solicitors and ultimately spoke with the solicitor who then had conduct of the matter, whom she told, "This is Margaret Wong. I received a letter from you. I never witnessed that lady's Will. I have never been to her house. I don't even know her. What story did Lina tell you?" Thereafter, Ms Wong contacted the Court and obtained the contact details of the solicitors for the plaintiff, and ultimately provided an affidavit to them. 44 Various reasons were advanced as to why Ms Wong's evidence should be discounted. It seems that she has a drinking habit and it was suggested she might have been intoxicated, but I cannot think that had she been intoxicated at East Lindfield on 1 July 2005, Ms Mulgrew and Mr Dover would have failed to notice that and give evidence to that effect, at least if she was sufficiently intoxicated to have no memory of the event. It was suggested that her memory was not good, but her memory as to when she first met Ms Mulgrew was superior to that of Ms Mulgrew who, at the beginning of her evidence-in-chief, felt constrained to correct her affidavit evidence in that respect. It was suggested that, in circumstances where her friend, with whom she was staying overnight the evening prior to the day on which she signed what she described as a blank Will, was already cautioning her to beware of signing a blank document, and she already "smelt a rat", her version was improbable; but I did not find it strikingly unsurprising that in circumstances where Ms Wong had some reservation about what she was being asked to do that she might have discussed that with her friend and then, nonetheless, gone ahead and done what her other friend, Ms Mulgrew, requested. 45 It was submitted that there were other reasons for Ms Wong and Ms Mulgrew to fall out at about the time they apparently did. Ms Mulgrew gave no evidence of any such reason, saying no more than that the falling out appeared to follow Ms Wong's daughter's wedding. A suggestion was made that it might have been that Ms Mulgrew declined to continue to take Ms Wong to clubs and pubs, but to my mind the evidence does not support that. On the other hand, it seems to me that there is one very plausible reason for the falling out, namely that it was attributable to the circumstances of the purported witnessing of the July 2005 Will. The falling out appears to correspond in time with the discovery by Ms Wong of the threatened misuse of her signature, and that is by far the most probable explanation for what happened. 46 I accept that Ms Wong's evidence on occasions appeared to exhibit a firmly adverse view of Ms Mulgrew, and that she was readily disposed to say and think the worst of Ms Mulgrew. That they were friends for so long as they were and that she is now of that view, to my mind, in this context, tends not to discredit Ms Wong, but to indicate that something serious happened to change their relationship. The only matter in the evidence which explains that change is the discovery of the threatened misuse of Ms Wong's signature. 47 I come now to the evidence of Ms Mulgrew. Her evidence substantially accords with Mr Dover's version of 1 July 2005 as to the time, as to the location, as to the sequence of events, and as to the persons who were present at execution. But there are numerous difficulties with aspects of her evidence. First, of course, she is a highly interested party. She would have been disqualified, had she purported to be an attesting witness, for the very reason that she was a beneficiary. Of all those present at the time of execution, as she would have it, she is the one who has a motive to give evidence in favour of the Will. Secondly, as I have already mentioned, she was required to correct her affidavit evidence in respect of how long she had known Ms Wong. Often that might seem a minor matter, but in the context of the nature and duration of the relationship between Ms Wong and Ms Mulgrew, and the way in which it had been commenced in hospital, it is not in this case insignificant. It is rather consistent with Ms Mulgrew's determination to play down the nature and extent of her relationship with and knowledge of Ms Wong. Thirdly, Ms Mulgrew's evidence, as to her knowledge and understanding of her contractual and professional ethical obligations in respect of gifts from clients, was erratic. At first she denied knowledge of any such obligations, but subsequently she conceded that she was aware of certain employment obligations in that respect. She maintained that she saw nothing wrong in the circumstances with accepting her client's intention to make provision for her in a Will without disclosing that to her employer, despite clear contrary indications in the employment manual. While I am acutely aware that Courts should be reluctant to assume that lay people understand the concepts of fiduciary obligations with which these Courts deal every day, I do not think it requires an equity lawyer to appreciate that a personal care nurse does not act with a high degree of ethics or morality in accepting other than token gifts from clients. I did not find her answers to some of the questions in this territory - to the effect that "we were told to keep her happy and to socialise with her" - at all convincing an explanation. I think I must conclude that the evidence shows, having regard to her employment obligations and what members of the community would normally regard as proper conduct, that she was prepared to engage with and receive from her client benefits in flagrant breach of what she knew to be her obligations under her employment contract and what most members of the community would recognise as proper. 48 Fourthly, Ms Mulgrew incorrectly claimed that by April 2005 she was attending on the deceased three times per week and sometimes more. According to the records produced by her employer, which document each attendance for which Ms Mulgrew was paid, she never attended three times per week before July 2005, and very rarely did so more than once per week. In this respect her evidence, had it not been challenged, would have painted a quite false picture of the closeness and frequency of her relationship with the deceased. In her affidavit she had deposed that she visited the deceased many times outside "business visits". In her oral evidence, when it was drawn to her attention that such visits were contrary to her employment contract obligations, that was played down to "a few times". In her affidavit she said that when the question of a Will was first raised with her by the deceased, she believed a solicitor would be needed; in her oral evidence she said that she knew a solicitor was not necessary. She ascribed the inconsistencies between her affidavit and her oral evidence to her former solicitor.

49 But by far the most significant aspect of her evidence, to my mind, is her description, to be found in paragraphs 31-34 of her affidavit, of attempts being made to contact Ms Wong in connection with the application for probate. As I have said, in her cross-examination she admitted having had a telephone conversation with Ms Wong after the deceased's funeral, in which she mentioned having been at the deceased's funeral and that she relied on Ms Wong as a witness to the Will, but that Ms Wong had said that she did not want to be involved. She conceded that she had Ms Wong's telephone number in her book, and knew where Ms Wong lived. Yet, in her affidavit she deposed:

Since the time of Doris' death, I have made enquiries in an attempt to locate Margaret Wong, however I have not been able to make contact with her and I do not know of her whereabouts. As deposed to in paragraph 17 of this affidavit, I had written down Margaret Wong's telephone number when I saw her at Macquarie Shopping Centre. I have searched around my home and my belongings for the number, but I have been unable to locate it. I can recall Margaret Wong saying to me on one occasion "I have my hair and makeup done at Epping". I have contacted two salons in Epping, Hairacy Hair and Makeup Design and Ms Elizabeth Hair studio. I said to the owners of those salons words to the effect of "Do you have an address for Margaret Wong?" On both occasions the response was in words to the effect of "I do not know of a Margaret Wong". 32. About 6-7 weeks ago, I saw a lady that I recognised from a social gathering. I do not know her name, but she looked familiar to me. I recalled that she was present at a party I had attended. I believe Margaret Wong had also been present at the same party. I said to this lady "Do you recall someone called Margaret Wong", and I went on to describe Margaret Wong's appearance. She said to me "I don't know where she is. I don't know if she's gone overseas or where she is". 33. I have carried out a search of the electoral roll for all persons with the name "Margaret Wong" in New South Wales. Annexed hereto and marked with the letter "A" is a list prepared by my solicitor of all person registered on the electoral roll in New South Wales with the name Margaret Wong. My solicitor wrote a letter dated 6 June 2006 to each of the persons on the list annexed and marked "A". annexed hereto and marked with the letter "B" is a copy of the letter sent to each of the persons. I am informed there has been no positive response to the letters. 34. Annexed hereto and marked "C" is a copy of a letter from Turnbull Hill Lawyers to SBA lawyers dated 20 January 2006. annexed hereto and marked "D" is a copy of a letter from Turnbull Hill lawyers to SBA lawyers dated 1 February 2006 enclosing a copy of the Will dated 1 July 2005. 50 In my view, these paragraphs of Ms Mulgrew's affidavit were calculated to give a wholly misleading and deceptive impression that genuine attempts were made to find Ms Wong - and, more importantly, to explain away why she could not be called (because she could not be found and her whereabouts were unknown) - and to suppress the fact that Ms Mulgrew knew that Ms Wong would not assist her case. 51 Contrary to Mr Armfield's submission, I do not find that the delay in production of the questioned Will supports any adverse inference. I do accept though, as Ms Mulgrew conceded, that she had an opportunity, had she wished to avail herself of it, to copy the deceased's signature through access to signatures on various documents that the deceased signed, including the vouchers in respect of Ms Mulgrew's attendances on her. 52 For those reasons, I am afraid I am unable safely to rely on Ms Mulgrew's evidence. More significantly, the matter to which I have referred in connection with paragraphs 31-34 of her affidavit reveals an awareness on her part of the existence of, and a desire to suppress, evidence adverse to her claim. 53 That then brings me back to the expert evidence of Ms Novotny, much of which I have already summarised. However, one aspect to which I have so far not adverted is what she says about Mr Dover's signature. She examined Mr Dover's purported signatures on the disputed Will and a specimen signature from his affidavit. Even to the untrained eye, there are significant differences between them. In addition, Mr Dover's driver's licence found its way into evidence and to my mind the signature on it is much closer to the specimens on his affidavit than to that which appears on the July 2005 Will - and, in particular, that which appears at the foot of the Will on the second page. Although Mr Dover said that the signatures on the Will which purported to be his were indeed his, there was no evidence adduced of other signatures of Mr Dover to show that those which appeared on the Will were within a reasonable range of variability of his signature. 54 On Ms Mulgrew's behalf, it has been argued that if this were a forgery, the whole exercise was extraordinarily elaborate and unnecessarily time-wasting. Where an alleged forgery does not meet that description, it is often said in support of the proposition that there was no fraud or forgery, that it would have been an extraordinarily clumsy one; many such attempts are. On the other hand, many are elaborate and careful. I do not think this argument advances the case. 55 So far as the timing is concerned, it needs to be borne in mind that on the hypothesis that there was a forgery, it is not known precisely when it took place, except insofar as Ms Wong's evidence would suggest that it was some time after 9 July, and probably after 16 July. The fact that any forgery took place before the death of the deceased, if it took place at all, is unsurprising; it obviously had to have appeared to have taken place before the deceased's death, and that verisimilitude is enhanced if the forged Will is in fact created before the deceased's death. 56 As to the suggestion that the plaintiff's case was that all but one of the signatures on the Will were forgeries, that does not seem to me to be a striking circumstance. If the deceased's signature was to be forged, then it does not seem to me improbable that signatures witnessing that signature would also be forged. 57 To my mind, that leaves the position, when it comes to evaluating the probabilities, as follows. In favour of the disputed Will is, first, the lay impression, which I confess that I hold, that the signature that purports to be that of the deceased appears unlikely to be a forgery - given the degree of similarity that it bears to her undisputed specimen signatures, and given that, if a forgery, it must be a freehand copy. Secondly, there is Mr Dover's evidence. 58 On the other side of the equation, there is the expert opinion of Ms Novotny - which is uncontradicted, substantially unchallenged, and fortified by the circumstance that an opposing report was sought and obtained, but not served or tendered - that there is a high degree of probability that the signature is a forgery, for which she relies primarily on a microscopic examination which I, of course, have not undertaken. In those circumstances, it seems to me that a court would not be justified in preferring its own lay impression to expert opinion before it, particularly when the expert opinion is founded on examinations that the Court cannot itself undertake, and is uncontradicted. Secondly, against Mr Dover's evidence there is Ms Wong's evidence. Some doubts are raised about Mr Dover's evidence by the matter I have mentioned concerning his inconsistent evidence about any prior meeting with Ms Wong, and by the unchallenged and uncontradicted evidence of Ms Novotny that there are significant differences between his purported signatures on the July 2005 Will and his undisputed signatures, a view corroborated by the Court's own lay impression. Moreover, some considerable support from Ms Wong's version is derived from Ms Mulgrew's concession about the telephone conversation some time after the deceased's death and the deceptive paragraphs in her affidavit, to which I have referred, which support an inference that she was conscious of difficulties in proving the July 2005 Will. 59 In those circumstances, it seems to me that a court could not logically prefer Mr Dover's evidence to that of Ms Wong, where there is some reason independently to doubt Mr Dover's evidence, and when Ms Wong's is corroborated, in significant respects, by Ms Mulgrew, both in cross-examination, and by her deceptive affidavit. These are the major factors which I find decisive. Minor matters which point in the same direction are the improbability that the deceased would change her Will in favour of a stranger, only about three months after having made the December 2004 Will, with Ms Mulgrew attending on her only once a week, and in circumstances where another nurse is attending on her twice a week over the same period; and the circumstance, as I have found, that Ms Mulgrew has demonstrated that she was prepared to, in effect, exploit a client for her own benefit in circumstances in which her contractual obligations and ordinary standards of propriety dictated that that ought not be done, tends to show that she is prepared to engage in less than honest conduct. 60 As I have foreshadowed, it is unnecessary that I find affirmatively that there is a forgery; I am simply not satisfied that the signature on the questioned Will is that of the deceased. 61 In those circumstances, it is unnecessary to deal with the issue of knowledge and approval, save to say that had I been prepared to find that the Will had been executed in the circumstances to which Ms Mulgrew and Mr Dover deposed, then it seems to me that their evidence would have constituted sufficient clear and satisfactory proof of knowledge of the Will, notwithstanding the suspicious circumstances - including the deceased's extreme age, her dependence on Ms Mulgrew, her limited contact with Ms Mulgrew to that date, the circumstance that Ms Mulgrew had selected both the attesting witnesses, the circumstance that Ms Mulgrew filled out the Will, and the circumstance that it made no provision for the deceased's only surviving relative, Ms Brown, nor for the Burnside family in respect of which there was some, at least, moral obligation arising from the circumstance in which the deceased herself inherited from Dr Davis to make provision. Despite those circumstances, Ms Mulgrew's evidence and that of Mr Dover, if accepted, would have established knowledge and approval. 62 As no submissions were made on the question of undue influence, I do not consider it necessary to deal further with it, save to observe that I am not satisfied that the deceased's Will was overborne.

Conclusion 63 Accordingly, my conclusions may be summarised as follows. 64 The December 2004 Will was duly executed by a capable testator who knew and approved of its contents. No vitiating factor has been alleged. 65 I am not satisfied that the signature on the July 2005 Will is that of the deceased. 66 I therefore find for the December 2004 Will. 67 I order that probate in solemn form be granted of the December 2004 Will. I refer the matter to the Registrar to complete the grant. I order that the cross-claim be dismissed. 68 I am inclined, but I will hear the parties on this, so far as costs are concerned, to order that the plaintiff's costs be paid out of the estate and that there be no order as to the first defendant's costs. [Counsel addressed on costs] 69 In probate, as in other adversary litigation, the general rule as to costs is that they follow the event, and that the unsuccessful party is ordinarily required to pay, at least on the party-party basis, the costs of the successful party. However, it is open to the unsuccessful party to show sufficient reason for making an order as to costs which does not follow the general rule and for that purpose it is not necessary to establish exceptional circumstances; it is enough for the Court to classify the case on its facts within one of two well-established exceptions [Re Herbert Brothers (1990) 101 FLR 279, 305 in which Kearney J said that in probate suits there were considerations which more readily affect the application of the general principle than in most other forms of litigation]. The two well-established exceptions in this field are, in short, first, that if there is a case for inquiry, the costs of the party unsuccessfully raising the inquiry may be left to be borne by that party without it being ordered to pay the costs of the successful party; and, secondly, if the litigation is caused in a sense by the conduct of the testator or those interested in the residue, the costs of the unsuccessful opposing party may be ordered to be paid out of the estate. 70 The second of those exceptions is plainly not relevant in this case, as no conduct of the testator or those interested in residue can be said to have caused the litigation. 71 As to the first exception, the arguments of the parties have, on this question, largely mirrored those which went through my mind when I indicated the order I initially proposed to make, though they have been elaborated by reference to authority. It is clear that, had I found affirmatively that the deceased's purported signatures on the July 2005 Will were forged to the knowledge of Ms Mulgrew, she would be ordered to pay the successful plaintiff's costs, and on an indemnity basis [cf Public Trustee v Annous, Estate of Bader Ali Taleb (Powell J, 31 July 1992) in which a party forged a document and peddled it as a genuine Will for his own financial advantage; costs were awarded on an indemnity basis against him]. 72 As is clear, however, I have not made such a finding in this case; rather, I have not been satisfied that the signature is that of the deceased, despite some indications and evidence that it is, because other negative indications and evidence on the probabilities outweigh the positive ones. In this case, there were two apparent Wills, and the validity of the later Will had to be resolved before the earlier could be admitted to probate. Once it came to light, it would have been necessary for the present plaintiff to disclose it, as she did in her executor's affidavit, as a later instrument of which she was aware. In those circumstances, its validity would have had to be resolved in the course of considering any application for probate of the earlier Will. 73 It is correct that, in reaching the conclusion I have, on an overall analysis of the probabilities, I took into account what I considered to be numerous difficulties with Ms Mulgrew's evidence. Those difficulties meant that I could not safely rely on her evidence, and in one respect at least she gave evidence that was misleading and deceptive. Although the giving of deliberately false evidence is a matter which may attract costs consequences, one needs to bear in mind the relationship of that evidence to the case as a whole. 74 As I have said, it is not to be inferred from my failure to be satisfied that the signature is that of the deceased, that it was necessarily a forgery, or that Ms Mulgrew knew it to be so. The case is to be approached on the basis not that she has failed in defending an allegation of forgery, but that she has failed to adduce sufficient evidence of the genuineness of the Will. One way of testing it is to consider whether, had the Will named an executor who was not purportedly present when it was executed, such an executor would have been justified in propounding it, given the appearance of the signature and its similarity to the specimens; given Mr Dover's evidence, I think an executor, who was not privy to the circumstances of its purported execution, would plainly have been justified in propounding it. 75 Does it make a difference that on her version, Ms Mulgrew was implicit in the preparation of the document? There is some authority to suggest that one does take into account this knowledge of the party propounding the Will, and I accept that that is so. But in this case, I should put out of mind any suspicion of which I have not been affirmatively satisfied, that she was party to or had knowledge of any forgery. In those circumstances, despite the adverse handwriting evidence, I do not think it could be said that she propounded a case which was obviously hopeless. Given the appearances of the signatures on the Will, and given Mr Dover's evidence, I think there was a case for inquiry. 76 For those reasons, I remain of the view that the order that I foreshadowed should be made: namely, that the plaintiff's costs be paid out of the estate of the deceased and there be no order as to the first defendant's costs. 77 The costs order is: (1) Order that the plaintiff's costs on the indemnity basis be paid out of the estate of the deceased. (2) No order as to the first defendant's costs to the intent that she bear her own costs.

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.

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (10)

Cited By (17)