Ortner v Mewjork - Estate of Shing

LEGISLATION CITED : Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW)

Burnside v Mulgrew & Anor; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 CASES CITED : Tyrrell v Painton [1894] P 151 Vernon v Watson [2002] NSWSC 600 Colvin v Fraser 2 Hagg Ecc 274 at 229-330; 162 ER 856

TEXTS CITED : Sunnocks, Martyn and Garnett, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 17th ed (1993)

PARTIES : Plaintiff: Jillianne Nancy Ortner Defendant: Richard Mewjork

COUNSEL : Plaintiff: L Ellison SC Defendant: B Townsend

SOLICITORS : Plaintiff: Mee Ling Solicitors Defendant: Kah Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

101284/08 Jillianne Nancy Ortner v Richard Mewjork - Estate of the Late Alan George Charles Shing JUDGMENT 1 HIS HONOUR: The deceased, Alan George Charles Shing, died on 12 August 2007 aged 62. He left an estate valued at about $790,000. This comprised his house in Port Hacking Road, Caringbah, bank accounts, superannuation, five motor vehicles and miscellaneous machinery. The deceased was never married and had no children. The plaintiff and defendant are his half-sister and half-brother respectively. The plaintiff seeks a declaration pursuant to s 18A of the Probate and Administration Act 1898 that a document dated 2 August 2007 apparently signed by the deceased is a testamentary document within the meaning of that section. She seeks a grant of letters of administration with the will annexed. The defendant seeks an order that the administration of the estate of the deceased be granted to him. The defendant contends that the deceased died intestate. In that event, the estate would pass to the plaintiff and defendant in equal shares. If the document propounded by the plaintiff constitutes the will of the deceased, the plaintiff will be the primary beneficiary of his estate. The defendant will receive nothing. Because the deceased died before 1 March 2008, s 18A of the Probate and Administration Act rather than s 8 of the Succession Act 2006 applies. 2 Section 18A provides: " 18A Certain documents to constitute wills etc (1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's will. (2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person. " 3 The document said to constitute the deceased's will was written out by hand by the deceased's friend, a Mr Grant Burford, and is purportedly signed by the deceased. Mr Burford purportedly witnessed the deceased signature. The document is in the following terms: " This is the will of Alan Shing signed at Brookvale on the 2 nd of August 2007 in the presence of Grant Burford.

I leave all my motor vehicles and race cars to Howard Bebbington

I leave all my models and engineering machinery to Rick Munro

And lastly I leave my house and all my other assets to my sister Jill Ortner. : Alan Shing

Grant C Burford: witness 2/8/07 " 4 In the space to the left of the name of Alan Shing is a signature purporting to be that of the deceased. 5 The defendant denies that the signature is that of the deceased. He accepts that if the court is satisfied that the deceased signed the document, it should be found that in the circumstances in which Mr Burford deposed the document was signed, and having regard to the text of the document, the deceased intended it to constitute his will. The defendant also accepts that if the court is satisfied that the deceased signed the document in the circumstances deposed to by Mr Burford, it would be found that the deceased knew and approved of its contents. 6 Mr Burford was a friend of the deceased. He had known him for 12 or 13 years. They had a common interest in cars. 7 The deceased's health had seriously deteriorated in the year before his death. He had difficulty walking. He had deteriorating eyesight. Since his teenage years he had been a Type 1 diabetic. He was dependent upon insulin for the control of his blood-sugar level. 8 On 2 August 2007 Mr Burford drove the deceased from his house at Caringbah to a doctor's appointment at Brookvale. This was a long trip. The deceased had an appointment for laser treatment to his eye. Mr Burford deposed that during the car trip the deceased talked about his estate and how he wished it to be dealt with after his death. Mr Burford deposed: " 9. On the journey to Brookvale words to the following effect were said:- He said:- 'I've been talking to my sister. She said I should be doing something about my will. She told me she left various things to her friends and to me, and also to charities.' He named 2 or 3 charities relating to animals. I can't remember the names of the charities. He continued:- 'Dickie is very well off, so he doesn't need any money. I want to leave to my friends the things we valued in common and the rest to Jill. She's the only one who looks after me, like my mother. We communicate regularly. I go to dinner there.' He then began to talk about what he wanted done with his property. Allan said at least 3 times to me words to the effect:- 'The most important thing is that my brother has no call on my assets, not one bean.' I said:- 'Who do you want to leave the things to?' He said:- 'Rick's into aeroplanes and machinery. I want him to have all my machines and aircraft. I want Howard to have all my cars. I want Jill to have my house and all my other assets. I know she's leaving money to charity. I'd like something like that to happen, if she doesn't need it.' 10. When the car pulled up at in front of the doctor's building at Brookvale, Alan and I exchanged words to the following effect. I reached into the back seat of my car and got my briefcase. I took my notebook out. I wrote notes in it as we spoke. A true copy of the page of my notes and the facing page is annexed hereto and marked with the letter 'A'. I said:- 'Let me get this straight. You are going to leave Howard the cars?' He said:- 'Yes.' I said:- 'Rick, the machinery?' He said:- 'Yes.' I said:- 'And the house and all your other assets to Jill?' He said:- 'Yes, that's correct. The most important thing is that my brother gets nothing. Or his sons. I said:- 'I'll put it all together while you're in the doctor's.' He said:- 'Alright.'" 9 Mr Burford deposed that whilst the deceased was attending his doctor, he wrote the document quoted above on a page in a spiral notebook. When the deceased had finished with the doctor, Mr Burford helped the deceased back to the car. Mr Burford deposed that the deceased was then very unsteady on his feet, and that by the time he got to the car his eye was bright red and he was in pain. Mr Burford deposed: "... I said:- 'I've done that will of yours. This is what I've written:' I then read out the words in annexure 'A' beginning ' This is ... ' and ending ' ... Jill Ortner. ' He said:- 'Yes. That sums it up in a nutshell.' I said:- 'Well sign it here', indicating the place on annexure 'A' just before the printed words ' ALAN SHING' . Then he signed annexure A by writing the handwritten words ' Alan Shing' . I then signed annexure ' A ' below his signature, and wrote ':witness 2/8/07' and drew a diagonal line through the rest of the page. I said:- 'Oh well, we've got that out of the way.' He said:- 'That's good.' I put the notebook back into my briefcase. On the way home, I said:- 'I wish you'd got a solicitor to do this.' He said:- 'This'll do.' I said:- 'I'll see if I can get a will kit, and we'll see if we can do a better job.' He said:- 'I don't care. This ought to shut my brother up.'" 10 The alleged will is contained in a spiral notebook belonging to Mr Burford. On the page facing the page containing the alleged will Mr Burford made a very brief note of what he said were the deceased's instructions for the will. 11 The defendant obtained a report from a handwriting expert, Mr Steve Dubedat. Mr Dubedat concluded that the signature on the alleged will was not genuine. He was provided with various specimen signatures which may be taken to be those of the deceased. He found no evidence that the writer of the specimen signatures wrote the signature "Alan Shing" on the purported will. Mr Dubedat also reported that microscopic investigation had revealed indentations on the page containing the purported will consistent with there having been an earlier page in the spiral notebook which was also expressed to be a will. The indentations included the words "leave all my". 12 Mr Dubedat's report was dated 3 December 2008. 13 On 16 December 2008 Mr Burford for the first time told the plaintiff's solicitor that on 2 August 2007 he had written out a will for the deceased in duplicate. Mr Burford later swore a further affidavit in which he deposed: " When I wrote out Alan's will in the car, I wrote it out in duplicate. Having written out one, I wrote out another on a second following page. To the best of my ability and recollection I copied the words from the previous page. I cannot say whether I kept to the same line or spacing format.

After the referral, when we returned to the car, I sat in the driver's seat and Alan sat in the passenger seat. When I read the will to Alan, I was holding it in my left hand, so he could see the page. I cannot recall whether the document I read to him was the first or second copy I had written.

I held the notebook open, I think, with both hands, and he signed it by leaning across my left forearm to reach the book which was between the two of us. He signed both copies. I then signed and dated each copy. I took the book back and removed the whole of one of the two copies and gave it to him. I do not know if it was the 1st or 2nd copy. He put it in the top breast pocket of his light blue shirt. ... " 14 Prior to 16 December 2008, Mr Burford did not inform anyone of the alleged duplicate copy of the will. If he did make a duplicate copy of the will which was signed and retained by the deceased, his first affidavit did not tell the whole truth about the circumstances of the making of the will. 15 Mr Burford deposed that he spoke to the deceased by telephone after 2 August, but the subject of the will was not discussed. 16 Mr Bebbington deposed that he visited the deceased on Sunday 5 August 2007. The deceased was unwell. He made no mention to Mr Bebbington of having made a will on 2 August 2007. 17 On Sunday 12 August 2007, Mr Burford was telephoned by Mr Bebbington. Mr Burford had been trying to contact the deceased for the previous two, three or four days. Mr Bebbington told him that he had found the deceased's body. Mr Bebbington lived very close to the deceased. On Sunday 12 August 2007, Mr Burford met the plaintiff and Mr Bebbington at the latter's house. The deceased's house was then cordoned off by the police. Either on the day that the deceased died or on the following Monday or Tuesday, Mr Burford, Mr Bebbington, the plaintiff and the defendant and Mr Munro went to the deceased's house to sort out his papers and effects. The deceased had a vast collection of papers and miscellaneous objects without any order. Mr Burford did not tell anyone of the existence of a duplicate will in the deceased's possession. No such document was found. There was a vast quantity of documents in the deceased's house. Mr Burford took loads of rubbish to the tip. He agreed that everybody was looking for important papers in the house as well as doing a clean-up. He had no explanation as to why he did not tell anyone of the deceased's having had a duplicate copy of the will. 18 Mr Burford attended on the plaintiff's solicitor on 20 August 2007. The conference took place between 10.35am and 12.10pm. Mr Burford provided the plaintiff's solicitor with detailed instructions on the basis of which his first affidavit was prepared. He did not tell the plaintiff's solicitor that he had made a duplicate copy of the will which the deceased had signed and had kept. He had no explanation for not having done so. 19 Mr Burford denied that he obtained a document with the deceased's signature and used it to attempt to copy that signature. He denied that he made an earlier attempt in the notebook to imitate the deceased's signature to a will, and removed the page because he did not consider the imitation signature to be good enough. 20 The plaintiff adduced evidence of a handwriting expert, Dr Brian Found. Dr Found agreed that the specimen signatures referred to by Mr Dubedat and the further specimen signatures with which he had been provided contained significant dissimilarities with the questioned signature on the purported will. It was his opinion that external factors alone were unlikely to have caused those dissimilarities. He could not exclude forgery, "disguise behaviour" by the author of the specimen signatures, or internal changes, as having resulted in the observed dissimilarities. He was unable to express an opinion as to whether or not the writer of the specimen signatures wrote the questioned signature. 21 There is no reason the deceased would have attempted to disguise his own signature. Both handwriting experts were agreed that there were significant dissimilarities between the signature on the purported will and specimen signatures of the deceased. The discrepancies included slow and deliberate pen strokes in portions of the questioned signature leading to a fluent flourish, compared with fluent signatures on the specimen signatures. The specimen signatures were obtained from documents executed between 1990 and 13 March 2007. There were no available specimen signatures after 13 March 2007. Mr Burford's evidence was that the deceased's medical condition had worsened significantly over the year prior to his death in August 2007. Nonetheless, the deceased's signature as at 13 March 2007 was consistent with the earlier specimen signatures, whereas the signature on the questioned will was not. 22 The existence of dissimilarities was not in doubt and it is unnecessary in these reasons to describe them in detail. Dr Found was of the opinion that the dissimilarities might be attributable to internal physiological changes to the deceased which affected his fine motor control, and external factors such as the posture of the deceased in signing the document and the physical support he had in signing the document. Dr Found did not consider that the external factors alone would result in the observed dissimilarities. Nonetheless he considered that the deceased's degenerative illness could explain the observed dissimilarities, particularly if the deceased, who was an insulin-dependent diabetic, was affected by hypo-glycaemia at the time of signing. 23 Mr Burford deposed partly in his first affidavit and partly in his second affidavit that at the time the document was signed by the deceased in the car and after the doctor's appoinment the deceased was "very unsteady on his feet" and "his eye was bright red and he didn't look too good". In his second affidavit he deposed that the deceased kept about him a supply of Coca-Cola which he would sip when he needed it. It can be presumed that the deceased did so to raise his blood-sugar level when he felt the need. Mr Burford said that after the deceased's appointment with his doctor he had to get a drink for the deceased. Sometime after the deceased had consumed some of his drink he was able to go to the car. He was very unsteady on his feet and Mr Burford had to carry him half way back to the car. He was not in a mood to talk. Mr Burford described the deceased as follows: " His eye was quite red, like a tomato. He was unsteady on his feet, possibly because of the sugar diabetes. He has been in a doctor's surgery for three hours and this is a guy that used to sleep every second hour for two hours every day. He wasn't used to being out of bed this long. I mean, physically he was exhausted. " 24 Given this physical condition of the deceased, it is surprising that Mr Burford would at that time have put before the deceased the will he said he had written out for the deceased's signature. In his second affidavit, Mr Burford said that when they returned to the car and the deceased was sitting in the passenger seat he read the will to the deceased holding it so that the deceased could see the page. Mr Burford deposed that the deceased signed the document when he was in the passenger seat reclining such that his upper body was well back and his head was down. According to Mr Burford, he held the notebook open with both hands and the deceased signed it by leaning across his left forearm to reach the book and signed both copies. The deceased then moved the back of the seat fully down and lay back and put his hand over his eye. It appeared to Mr Burford that he was in pain. 25 Dr Found was of the opinion that such circumstances could explain the dissimilarities between the deceased's usual signature as it appeared from specimens obtained up to March 2007 and the signature on the propounded will. Mr Dubedat considered that even when allowance was made for such factors affecting the internal physiology of the signer of the documents and the external circumstances in which the document was said to be signed, there would be more similarities to the deceased's signature if the document were genuine. In Mr Dubedat's view, the document bore all the hallmarks of a forgery in that it included all of the gross features of the deceased's acknowledged signatures but none of the lesser features. Dr Found considered that the absence of such lesser features might be explained by the circumstances in which the document was signed, and, in particular, by changes to the deceased's physiology which affected his fine motor functions when he allegedly signed the document. It was common ground that there was no detailed analysis supported by controlled studies of how changes to a writer's physiological condition, such as changes to blood-sugar levels, affected a writer's signature, such that a judgment could reliably be made whether a questioned signature with different features from specimen signatures of undoubted validity was or was not the signature of the writer affected by such a condition. 26 The difference of opinion between Mr Dubedat and Dr Found was on a question on which no certain knowledge is available. Both are well qualified. Neither Dr Found's nor Mr Dubedat's opinion involved any departure from established and valid methodology. Their difference of opinion is in an area in which experts may legitimately differ. Having regard to Dr Found's opinion I would not conclude that the purported signature of the deceased on the will propounded by the plaintiff was forged. As Brereton J explained in Burnside v Mulgrew & Anor; Re the Estate of Doris Grabrovaz [2007] NSWSC 550, it does not necessarily follow that I should be satisfied that the signature on the document propounded by the plaintiff is that of the deceased (at [26]-[30]). The case is somewhat analogous to those cases in which suspicious circumstances raise the question whether a testator or testatrix knows and approves of the contents of the will. In Tyrrell v Painton [1894] P 151, the alleged will was made by a testatrix who was ill and had signed a different will two days before she signed the alleged will. Her doctor deposed that she was in an exhausted condition and was drowsy and had complained to her treating doctor that she had been disturbed by the introduction of a strange young man to her room. The strange young man was an attesting witness to her alleged further will. The trial judge accepted the evidence of the attesting witnesses, one of whom was the son of the person who would take under the alleged will. The Court of Appeal said that it was not necessary to show that the will was the result of a fraudulent scheme on the part of the beneficiary or the attesting witnesses. It was enough that suspicion attached to the execution of the second will which was not removed. Davey LJ said (at 159-160) that: " ... wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless that suspicion is removed. "

(See Vernon v Watson [2002] NSWSC 600.) In Burnside v Mulgrew & Anor , Brereton J refused to admit to probate a document which was alleged to be forged because he was not satisfied that the signature was that of the deceased, although the evidence did not warrant an affirmative finding of forgery. 27 In this case, I do not conclude that the signature on the alleged will is a forgery. The evidence is not so clear as to warrant such a positive finding which would carry with it a finding of perjury and attempt to pervert the course of justice. Had there been no reason to query Mr Burford's evidence, in the light of his evidence and that of Dr Found, I might well have been satisfied that the deceased signed the document intending it to be his will. But there is no satisfactory explanation for Mr Burford's failure to tell the plaintiff or the deceased's friends of the existence of the alleged duplicate copy of the will. There is no satisfactory explanation of his failing to tell the plaintiff's solicitor of the alleged duplicate of the will during his conference on 20 August 2007 or at any time prior to swearing his affidavit on 12 July 2008. In swearing his affidavit of 12 July 2008 Mr Burford swore to tell the whole of the truth in relation to the matter. He did not do so. It is surprising that the alleged duplicate was not found when his papers were examined and sorted. It is possible that a small page torn out of a notebook containing only handwriting might have been discarded without being read, or might have been overlooked in a pocket of the deceased's clothing. I bear in mind that the deceased's house was full of papers. Nonetheless, the failure to locate a duplicate will, and Mr Burford's failure to mention it is suspicious. The dissimilarities between the deceased's usual signature and that on the propounded document creates suspicion. In the circumstances, those suspicions have not been allayed. I am not satisfied that the deceased intended the propounded document to constitute his will. 28 It is unnecessary to decide whether, had the document constituted the will of the deceased in accordance with s 18A, it should be taken to have been revoked because the duplicate Mr Burford said the deceased had kept was not found after the deceased's death. If such a duplicate were to be presumed to have been destroyed by the deceased, animus revocandi, the revocation would be effective notwithstanding that no notice was given to Mr Burford to destroy the duplicate in his possession (Sunnocks, Martyn and Garnett, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 17th ed (1993) at 203 and cases there cited; Colvin v Fraser 2 Hagg Ecc 274 at 229-330; 162 ER 856 at 879). The question would remain whether it should be presumed from the fact that the will was not found among the deceased's possessions that he had destroyed it with the intention of revoking the will. Something can be said on both sides of that question. There is a presumption arising from the fact that the duplicate was not found that it was destroyed animus revocandi, but the strength of the presumption varies according to the circumstances. The question only arises on the assumption Mr Burford's evidence is accepted. Given that on this assumption the deceased had made a document he intended and understood to constitute his will only a few days previously, that he told no-one that his intentions had changed, and that there is no evidence that he took any step to contact a solicitor to do the job properly, I would be inclined to the view that the presumption is displaced. But it is unnecessary to decide the question. It is a question of inference. It does not depend upon the acceptance or rejection of the evidence of any witness. If my primary conclusion is wrong, the Court of Appeal would be as well-placed to decide that question as am I. 29 By his cross-summons the defendant sought an order that the administration of the estate of the deceased be granted to him. As half-brother and half-sister of the deceased, both the defendant and the plaintiff are entitled equally to share in the deceased's estate on an intestacy (Probate and Administration Act, s 61B(6)(b)). The plaintiff sought a grant of letters of administration with the alleged will annexed. She did not seek in the alternative an order for the grant of letters of administration jointly with her brother on an intestacy. An application to amend to claim such relief was made after all other submissions had been concluded. I refused that application as evidence would have been sought to have been led on the question by the defendant in relation to apprehended difficulties of a joint administration arising from the present proceedings. There would also have been a question as to the fitness of the plaintiff for such an appointment. She is 79 and suffers from medical conditions on the basis of which I refused to allow her to be cross-examined. The estate is not a large one. The administration of the estate should not be complex. The principal task is for the administrator to arrange for the sale of the deceased's real estate. This can be done by placing the matter into the hands of an experienced real estate agent and solicitor. It is not in the interests of the parties for the matter to be further delayed and for further costs to be spent on litigation over the question as to whether, in the light of my findings, the plaintiff should jointly be appointed with the defendant as administrator of the deceased's estate. If that issue were to be raised, it should have been raised by the plaintiff as an alternative claim. 30 For these reasons I make the following orders:

1. The plaintiff's claims for relief in paras 1-4 of the statement of claim be dismissed.

2. Orders in accordance with paras 1 and 2 of the first cross-claim.

3. The proceedings be referred to the Registrar to complete the grant of letters of administration to the defendant on an intestacy.

4. Exhibits may be returned after 28 days. 31 I will hear the parties on costs. Prima facie, I am of the view that there should be no order as to costs in respect of the plaintiff's application, and that the defendant's costs should be paid out of the estate on the indemnity basis (see Burnside v Mulgrew at [71]-[76]).

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