Meissner v Lindsay

Freedom of Testamentary Disposition

1. That is not the end of the legal and factual difficulties facing the plaintiff's claim. I adverted to the deceased's freedom of testamentary disposition. The plaintiff's claim seems to assume that it is a light matter for the Court to effectively disturb the will of the deceased. The will was made on 17 December 2008. The deceased died in 2013. By her will, the deceased left capital sums to various charities and then directed that the residue of her estate be divided equally between eight family members, being her nieces and nephews, her brother and sister. There was a separate legacy to her parents. No provision was made for the plaintiff. Nor does it seem to me to have been necessary for the deceased to do so.
2. It is appropriate to repeat what I said in Steinmetz v Shannon [2018] NSWSC 1090 at [29] and [30] in relation to a testator's freedom of testamentary disposition: 29 In Madden-Smith at [30]-[31], I referred to a number of authoritative statements of high authority concerning a testator's freedom of testamentary disposition as follows: [30] It is useful, I think, not to lose sight of the fact that freedom of testamentary disposition remains a foundational principle in our system of law. In Vigolo v Bostin (2005) 221 CLR 191, Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained, 'It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification': [10] Hallen AsJ expressed the same point when he said recently in Goodsell v Wellington [2011] NSWSC 1232 at [108] that: Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated. [31] And many years ago Sir Owen Dixon said in Pontifical Society for the Propagation of the Faith v Scales (1961-2) 107 CLR 9 at 19 that it was never intended by the legislation that 'freedom of testamentary disposition should be so encroached upon that a testator's decision expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court'. 30 To the statements by Gleeson CJ and Dixon CJ, one may add that of Bray CJ in Estate of Bridges (1975) 12 SASR 1 at 5-6: … it seems to me that Parliament had indicated its intention that the scheme of things set up by a testator in his will … shall be interfered with so far as is necessary to make adequate provision for the proper maintenance, and advancement of the claimants specified in the Act, but no further. … I think that Parliament no more intended to grant an unlimited liberty to recast dispositions resulting from the law of intestacy on moral grounds than it did to give a similar liberty to recast dispositions made by will.
3. I also explained in Steinmetz the reason why considerable respect should be given to the judgment of a capable testator at [10]: The reasons why considerable respect should be given to the judgment of a capable testator are well known, but all too often ignored. I referred to those reasons in Madden-Smith v Madden [2012] NSWSC 146 at [32]-[33]: [32] There are sound practical reasons for not encroaching too readily on the testator's freedom of testamentary disposition and especially not in accordance with abstract concepts such as fairness or the misguided notion that there should be equality … In Pontifical Society for the Propagation of the Faith v Scales (supra) at 20 Dixon CJ articulated the unique difficulty which these cases present with the following memorable apophthegm: The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his. [33] To similar effect were some observations of Taylor J in Stott v Cook (1960) 33 ALJR 447 at 453-4, who explained that the reason why a court does not have a mandate to rework a will according to its own notions of fairness, is because such an approach would serve justice no better than: …acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics.
4. White JA in Sgro v Thompson [2017] NSWCA 326 at [80] ‑ [88] elaborated on the importance of these same considerations. In summary, his Honour emphasised that the deceased will have been in a better provision to determine what provision for a claimant's maintenance and advancement in life is proper than will a Court be when called on to determine that question months or years after the deceased's death, when the person best able to give evidence on that question is no longer alive.

Credibility

1. There is yet another problem confronting the plaintiff's claim. I am hearing the second half of proceedings that were commenced in 2013. The first half was a claim by the plaintiff for the revocation of a grant of probate of the will of the deceased. That claim was based upon what the plaintiff contended was a 2010 will of the deceased. Robb J heard that claim and gave a lengthy reserved judgment in June 2016. His findings were excoriating of the credibility and honesty of the plaintiff. His Honour held, in substance, that the 2010 will, which the plaintiff propounded, was a fabrication. The findings reflect very poorly on the plaintiff. Those findings were as follows: 128 It will be convenient to start by making the following observations about the 2010 document, relevant to the likelihood that it was produced by the deceased and executed by her as her last will and testament: (1) The document is a photocopy. (2) No original of the document has ever been found. (3) Mr Meissner's evidence is that the deceased took the original document with her after she left Fairfax House on 10 February 2010 (together with the original of Mr Meissner's will). (4) However, notwithstanding that there was evidence that the deceased was a meticulous record keeper, the only will found in the place where the deceased told her brother, immediately before her death, was the 17 December 2008 will, and not the original of the 2010 document. (5) There is no evidence that the deceased told anyone of the existence of the 2010 document. (6) There is no evidence that anyone saw the 2010 document after 10 February 2010, until Mr Meissner gave a photocopy of the document to Mr Davis on 25 July 2014. (7) Mr Smith gave evidence, which I accept, that the deceased asked him whether he was prepared to be the alternate executor in her 2008 will. I also accept his evidence that the deceased did not ask him whether he was prepared to be the executor, as nominated in the 2010 document. It is improbable that the deceased would have nominated Mr Smith as her primary executor, without having first asked for his consent. (8) Although the deceased was a wealthy woman, and had instructed Ms Lindsay to prepare her 2008 will, there is no evidence that she instructed a solicitor to prepare the 2010 document, and Mr Meissner's evidence suggests that the deceased prepared the 2010 document herself. That is inherently improbable, given the worth of the assets that would become part of the deceased's estate, and the importance to the deceased of ensuring that her will was validly executed. Although the deceased was apparently an astute businesswoman, there is no evidence that she was familiar with any of the rules concerning the formal and essential validity of wills; and in particular, the steps that were necessary for a will to be properly executed and witnessed. (9) Clause 3(d) contains a description of Mr Meissner as the deceased's "partner and husband". The deceased plainly knew that she had divorced Mr Meissner on 5 August 2008. Furthermore, although there is scope for doubt about the number of times and regularity that Mr Meissner and the deceased were in contact after they separated, if she saw him regularly at all, the evidence is not consistent with Mr Meissner being the deceased's partner as at 10 February 2012. (10) The address of the deceased is misspelt. She lived in the apartment at 202/40 Refinery Drive, Pyrmont, and not 40 Refinery Drive; it is an improbable slip for a long-term apartment owner to describe her address without referring to the number of the apartment, particularly in a document as solemn as a will. (11) The document misdescribes the address of the executor, the deceased's brother, as being at Yowi Bay, rather than Yowie Bay. (12) Mr Meissner took no steps to instruct his solicitors to file a caveat in the Probate Registry to protect the 2010 document after the deceased passed away. (13) Probate of the 2008 will was granted on 31 October 2013. Mr Meissner did not provide a copy of the 2010 document to his solicitor, Mr Davis, until 25 July 2014. Mr Meissner provided no explanation at all for why he did not give Mr Davis his copy of the 2010 document at the time he first instructed Mr Davis, and instead falsely contradicted Mr Davis' evidence. (14) I infer that Mr Davis wrote the letters that he wrote to Ms Lindsay's solicitors in 2013, in which he claimed that Mr Meissner had a right to make an application for a family provision order against the deceased's estate on the basis of instructions given by Mr Meissner, and in ignorance of Mr Meissner's claim that he was the sole residuary beneficiary of the deceased's estate under a later, valid will than that for which probate was granted to Ms Lindsay. It is entirely improbable that Mr Meissner would have given Mr Davis instructions to write the letters that he did, if the 2010 document existed, and Mr Meissner believed that it was the deceased's last will. Mr Meissner offered no submissions to explain how the steps that Mr Meissner instructed his solicitor to take in the period up to 25 July 2014, when the 2010 document was given to Mr Davis, were objectively consistent with Mr Meissner being aware from the date of the deceased's death that he was the residuary beneficiary, under a valid will made by the deceased on 10 February 2010. (15) I accept Ms Lindsay's evidence that, at the meeting she had with Mr Meissner at her office shortly after the deceased's funeral, he asked her whether he was a beneficiary under the deceased's will, which I infer from the statement in her September 2013 file note: "Joe was surprised he was not mentioned in the Will". (16) The divorce between Mr Meissner and the deceased took effect from 6 September 2008, which was about three months before the deceased executed her 2008 will. The residuary beneficiaries of the 2008 will are the deceased's six nieces and nephews and her brother and sister in equal shares. While it is true that over a course of years testators may simply and spontaneously change their minds as to the beneficiaries who they wish to inherit their estates, it may be observed that in the present case, there is no evidence of any objective circumstances that would explain a decision by the deceased to revoke her will and make a new will bequeathing the whole of her residuary estate to her divorced husband. (17) To the contrary, there is evidence given by Ms Lindsay, which I accept, that the deceased made a number of statements to her to the effect that she wished to sever all ties with Mr Meissner, and to leave her estate to her family. (18) Mr Meissner suggested a reason for the deceased's change of mind, in par 6 of his 26 April 2015 affidavit. He said that the deceased said to him that she wanted to make sure that Ms Shi did not get anything out of the estate of Mr Meissner or the deceased, and that he and the deceased would each give the other most of their estates. While an agreement that there be mutual wills is capable of explaining a change of mind on the deceased's part, it is not a compelling explanation, given the absence of objective evidence of the wealth of Mr Meissner, which he was offering in exchange for the deceased's agreement to leave her residuary estate to him. Furthermore, there appears to be no compelling reason why the deceased would have wanted to disinherit her family in favour of a former husband with whom she had no more than occasional dealings, if that, given in particular the substance of her own wealth. (19) I accept Mr Kierath's evidence that he attended a meeting with the deceased at her office in Crows Nest at about 12 noon on 10 February 2010, and that the meeting lasted for approximately 1 to 1 ½ hours. I view that fact as being completely inconsistent with the possibility that the deceased was at Fairfield House at Windsor at the time claimed by Mr Meissner, Mr Middleton and Mr Quayle. (20) On the other hand, I note that a comparison between the specific requests in the two wills appears to provide some support for Mr Meissner's case. Both wills make specific gifts in favour of St Vincent's Hospital and the Cancer Research Foundation, as well as the deceased's parents. The gifts to the parents and St Vincent's Hospital are the same in each case; being $200,000 and $100,000 respectively. The gifts to the Cancer Research Foundation are $100,000 in the 2008 will and $100,000 in the 2010 document (the error in the 2008 will in describing the gift as being $100,000 in words, and $150,000 in figures having been corrected). If the deceased did not prepare the 2010 document, then the terms of the specific bequests might be thought to give rise to a significant coincidence; given that Ms Lindsay's evidence suggests that the deceased and Mr Meissner had little contact, so it should have been unlikely that the deceased would have had an opportunity to inform Mr Meissner of the terms of the specific bequests in her 2008 will. There is, however, a simple explanation for this apparent coincidence. That is that Mr Meissner's solicitor was given a copy of the 2008 will on 4 October 2013. That was before Mr Davis said that he was told my Meissner of the existence of the 2010 document in the last week of October 2013. Mr Meissner therefore had the benefit of knowing the terms of the 2008 will before he asserted the existence of the 2010 document as being the last will of the deceased, and delivered a photocopy of the document to Mr Davis on 25 July 2014. Mr Meissner therefore had the opportunity to use the 2008 will as a template for the 2010 document.
2. In addition to those findings, Robb J made numerous other findings expressly rejecting the credibility and honesty of the evidence given by the plaintiff. Some of the evidence on which his Honour remarked included an assertion by the plaintiff that he was not divorced from the deceased or that he did not know he was divorced. His Honour found, at various points in his reasons, that the plaintiff's evidence was 'incredible' or that he did not find it to be credible.

Criminal History

1. The fact that the plaintiff propounded a fabricated will and sought to have this Court make an order revoking the grant of probate to the defendant is a very serious matter, reflecting on the merits of his claim. It probably also reflects another aspect of the evidence which presents a serious difficulty to the plaintiff. The plaintiff has had a significant history of criminal conduct prior to 1992. Robb J referred to some aspects of it in his reasons. His Honour referred to the conviction of the plaintiff in 1992 in the District Court in Sydney for attempting to pervert the course of justice and his sentence for a term of imprisonment of 12 months, of which he served nine months. It is probably no coincidence that also in 1992, the plaintiff was arrested with many others and charged with major drug supply. This was, apparently, a very lengthy trial which ended inconclusively. But consistently with much else of the plaintiff's evidence, he sought to evade responsibility. He blamed it all on 'corrupt police'.
2. Robb J also referred to the following matter at [86]: Mr Meissner put into evidence as an attachment to his first affidavit, a document dated 3 April 1982 headed, 'Crime Intelligence Squad', which purported to list a significant number of criminal activities in which Mr Meissner was alleged to have been involved. Mr Meissner said that the document 'is not a genuine criminal intelligence report, rather it was a work of fiction written by my political opponents in the 1980s as a part of an attempt to mere me in the Sydney media.'
3. Those matters were only part of the picture. The criminal record of the plaintiff goes back to his childhood. It includes larceny, break, enter and steal, more larceny, assault occasioning actual bodily harm and the attempt to pervert the course of justice to which I have referred. I accept that engagement in illegal conduct is not necessarily 'a bar to a claim under the Act': Hampson v Hampson [2010] NSWCA 359 at [95]. It is nonetheless a troubling picture.

Relationship with Deceased

1. Against the background of those matters, it is relevant to consider the state of the relationship between the plaintiff and the deceased. It is perfectly clear from all of the evidence taken as a whole that the marriage was unstable and that the deceased was frequently unhappy. They had not lived together in any significant way since August 2000. The plaintiff had an affair with his secretary and established a relationship with her. They had a son together in 1992.
2. I am satisfied that the plaintiff and the deceased had very little contact after 2000 other than what was necessary because of their joint ownership of a property at Windsor. It is also clear that the deceased made a number of statements indicating her wish to remove the plaintiff from her life and to sever all ties with him. I accept that at the time of the orders for property settlement made in the Family Court of Australia in 2004, the deceased said to the defendant, who was acting on her behalf, 'I wish to sever the last tie I have with Joe'.
3. In November or December 2008 when the deceased instructed the defendant to prepare her will, I accept that she said words to the effect, 'I'm now divorced from Joe and I want to leave my estate to my family.' She also said, 'I want to leave a substantial amount of money to charities and I want my nephews, nieces, brother, sister and parents to inherit my estate'.
4. I accept the evidence of her brother Mr Smith that the deceased said to him in approximately 2002, words to the effect, 'You know that Joe and I are separated. He lives at Fairfield House in Windsor and I'm renting this unit at Murray Street, Pyrmont', to which Mr Smith responded, 'You've been separated for years now', to which the deceased replied, 'Yes, I have. The marriage is over. I'm completely over Joe. He has lied it me for years. He never came home and was always out gambling. He also had a son, Joseph junior with his secretary, Michelle Shi. That was the final straw'.
5. I also accept that not only did the deceased live independently from the deceased from about 2000, but that from at least 2002 she maintained relationships with some other men and regarded herself as independent from the plaintiff. In approximately 2008 the deceased said to Mr Smith, 'I have no feelings for Joe and if it wasn't for the Fairfield House property at Windsor I would have nothing to do with him. Around February every year I have to chase up Joe for the figures for Fairfield House to complete my tax returns'. There is nothing in the evidence which suggests to me that there was any residual feeling of affection, let alone moral obligation, by the deceased to the plaintiff.

Plaintiff's Financial Position

1. The remaining aspect of the evidence relates to the plaintiff's financial position. I should point out that I did not feel satisfied that I could confidently accept any assertion he made about his assets or his financial position. He provided no objective corroborative documentary evidence to support the assertions he made. Indeed, his evidence and submissions struck me as being somewhat unreal.
2. The fact is that the plaintiff is the registered proprietor of the property known as Fairfield House at Windsor. There was no formal valuation of that property, but the informal valuations produced by both sides indicated a range between approximately $3 million and approximately $1 million. He is also the registered proprietor of an apartment in Castlereagh Street, Sydney. He contends that he holds the property on trust for Michelle Shi but no evidence of a trust was placed before me. Michelle Shi was not called. He owned a property at Marangaroo, which he sold in recent years for $420,000. He owns several old motor vehicles, including a Rolls Royce Silver Spirit, a Mercedes 500CLK and an old Saab motor vehicle.
3. Most significant, when considering the financial position of the plaintiff, is his real source of income. The plaintiff is a professional poker player who has such a high level of expertise that he is invited around the world with expenses paid to play poker in professional tournaments. He said to me that he never lacks for food because it is always provided by casinos, including Star City Casino. He said, somewhat implausibly, that he does not keep a record of what he wins and loses. It is clear to me however that the amounts involved are not insignificant. He seems to be frequently overseas at tournaments. The plaintiff also obtains some money from counselling work. He says that he is a motivational counsellor and contends that he has a degree in psychology.
4. It is impossible to form a view that the plaintiff genuinely has the needs for which he contends. I am satisfied that the position is not as dire as he suggests. His evidence was replete with exaggeration and falsity. Certainly there is no reason why he cannot continue as he has done for some years. His health is poor but that probably reflects his age and lifestyle. He complains that the Fairfield House property needs significant repair and renovation, but that is something for which he is responsible. He says that he currently lives with the woman who bore his son, Michelle Shi, but that the relationship has broken down. That is also something for which he is responsible. He receives a small allowance from Centrelink, but given the complete absence of reliable, objective documentary financial evidence, it is not possible to go further.
5. The real point is that, whatever the plaintiff's financial position, I am not satisfied that the deceased's decision to leave her estate to her nephews, nieces, siblings and parents was a failure of any duty by her to the plaintiff in the circumstances of their relationship, including the breakdown of their marriage, divorce and property settlement.

Size of Estate

1. I have not overlooked the size of the deceased's estate. The gross value of the estate at the date of death was $5,369,520.22. The greatest part of the estate represented the deceased's interest in a business known as Total Retail Advertising Pty Ltd, which was sold shortly before her death. The evidence satisfied me that the success of that business was almost entirely the product of the input, skill and hard work of the plaintiff. Despite assertions to the contrary, there was no evidence on which I could confidently rely that the plaintiff made any contribution to the success of that business.
2. The fact that the estate is reasonably substantial is not necessarily to the point. As I said in Steinmetz v Shannon at [31]: The deceased's estate is certainly large enough to accommodate the plaintiff's aspirations without causing undue hardship to the defendants, but why should it. After all, it is his property, his choice and his final act.
3. At [32], I referred to the explanation to the same effect by Taylor J in Stott v Cook (1960) 33 ALJR 447 at 435 to 453 who said: After all, a testator's property is his own and he is entitled to dispose of it as he pleases, subject only to correction if he omits to make proper provision for those whose maintenance, education or advancement is his special responsibility. The word 'advancement', is, as was pointed out in McCosker v McCosker (1957) 97 CLR 566, a word of wide import, but it does not justify the redistribution of a testator's estate. Merely because it is of considerable value and because those to whom it has been given can well afford to have their interest diminished in order to confer a benefit upon a disappointed son or daughter.
4. The same explanation applies with greater force in the case of a plaintiff who is not a disappointed son or daughter, but is a former spouse who had a tempestuous and unstable relationship with the deceased and who entered into a property settlement with her which was the subject of formal orders made by the Family Court of Australia in 2004.

Conclusion

1. This litigation seems to have involved one misconception after another. Not only did the plaintiff completely fail in the first part of his claim before Robb J, but he has failed to pay the costs which are the subject of that judgment against him. He has paid $20,000 into the trust account of the defendant's solicitors pursuant to an order made by Hallen J as a result of his responsibility for the earlier vacation of his hearing date. He has also been required to pay $30,000 into Court as security for the defendant's further costs of this hearing. In the light of the evidence that I have heard, it was demonstrably prudent that those orders for security of costs be made.
2. For those reasons, I dismiss the claim. I order the plaintiff to pay the defendant's 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. Decision last updated: 13 February 2019