Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326 | Case summary

6054/07 SCOTT ANDREW SULLIVAN & ANOR v JULIE ANN MOUGLALIS RE ESTATE OF THE LATE WILLEM WYMA JUDGMENT 1 HIS HONOUR: Willem Wyma late of Port Macquarie, retired supervisor died there on 22 October 2001. On 22 March 2007 this Court (Gzell J) granted Letters of Administration on intestacy to Julie Ann Mouglalis a daughter of the deceased. Gzell J made that grant after a contested hearing of three days in February 2007 of two competing claims relating to Willem Wyma's succession. In proceedings 107438 of 2002 Julie Ann Mouglalis sought a declaration that the deceased died intestate, and grant of administration to her on intestacy: this claim succeeded. Five children of the deceased were entitled on intestacy: two daughters of the deceased's marriage, which was dissolved in or about 1958 in the Netherlands, and Ms Mouglalis and her two brothers Geoffrey Sullivan and Scott Sullivan, children of the deceased and of Constance Delma Sullivan. They were born during Mrs Sullivan's marriage to Mr Sullivan who died in 1983, but, as Gzell J found, they were children of the deceased, as acknowledged by his statements and conduct during his lifetime, and conclusively established by DNA paternity testing after his death. In proceedings 110756 of 2004 Beverley Griggs as attorney for Janneke Wyma, one of the daughters of the first marriage, claimed a grant of Letters of Administration with a will of the deceased annexed; the will was not available and its exact terms were not known, but its provisions were proved by the evidence of Sabena Lantinga, the daughter of Janneke Wyma, who was shown a copy of the document, not then executed, by the deceased in October 1995, when he told her that he proposed to make a will in those terms. Gzell J. found that a will in those terms had been made, but could not be found at or after the testator's death, and must be presumed to have been revoked. 2 Janneke Wyma is now Janneke de Jager, the wife of Frans de Jager. Joyce Wilson as attorney for Janneke de Jager brought the present proceedings by Summons dated 20 July 2007 claiming administration with the will annexed of a document dated 5 December 1995 propounded as the last will of the deceased. Mrs de Jager claims that she received the document and its existence became known to her for the first time on Thursday 5 April 2007, when her husband found it in the mailbox of their home and showed it to her. Their home is at Stedum in the Netherlands. Frans de Jager gave evidence to the effect that about 8 a.m. on 5 April 2007 he walked the dog, and had just finished walking the dog when he checked the mailbox, where he always looks each morning for mail and advertising papers. In the mailbox he found a quantity of advertising papers and a white A4 size envelope with no markings; no address, no postal stamp or franking, no markings whatever. He opened the envelope and found two documents in it. One is the document propounded as the will of the deceased. The other is a small piece of white paper on which someone had hand-written (in English): I'm Sorry I can't live with this secret

There is also some printed material forming part of the will form. 4 The terms given in evidence before Gzell J. by Sabena of the document she was shown by the deceased are remarkably close to the terms of the document now propounded. 5 The names of the witnesses (or witness) are not clearly legible. It is not clear that two persons signed; it is possible that the first signature, which looks something like "Carrol Watkin", is written as the name of the witness, whose apparent signature is illegible. The surname cannot be read clearly; it could be Watkins or Wathen and it could be something else. The forename "Carol" can be spelt in several ways, as a man's name or as a woman's name, but it is not usually spelt with the letter R repeated. Printed directions on the will form and the words of attestation printed on the will form and partly completed in handwriting make clear the requirement, which most people know, that execution of the will should be attested by two witnesses who should sign the attestation. 6 Of the persons referred to in the text Minke Wyma is as there stated a niece of the deceased. Sabina Lantinga referred to in the will is Sabena Bianca Stellink-Lantinga, a granddaughter of the deceased and the daughter of Janneke de Jager. Janneke Lantinga-Wyma referred to in the will is Janneke de Jager, on whose behalf the present proceedings are brought. 7 Henk Korporaal referred to in the will is Mr Hendrik Korporaal, a retired accountant who prepared the deceased's tax returns from about 1994 until 2001. He had known the deceased much earlier in life, 30 years or so earlier. Mr Korporaal, who lived in Cremorne, visited the deceased, who lived in Port Macquarie, on several occasions during the period from 1994 until 2001. On 6 July 2007 Mr Korporaal formally renounced probate of the document now propounded, and he also renounced the gift of $10,000 which according to the will was "To Pay for Expenses As my Executor". Earlier he had renounced executorship under the lost document propounded before Gzell J. 8 In the hearing before me I have had regard to the evidence given when Gzell J. heard the two earlier proceedings together, and further evidence given before me. I have also treated facts established by findings of Gzell J. as established for my purposes; but of course Gzell J. did not deal with the document now propounded. It has long been the practice in probate to treat successive applications for administration as one continuing litigation and to refer to evidence and findings at earlier stages. UCPR 31.8 relates to earlier evidence of the same proceedings; subrules (1) and (2) are not presently significant but subr (3) provides: "Subject to subrr (1) and (2), evidence taken at a hearing may not be used as evidence in any subsequent hearing in the same proceedings except by leave of the Court." I gave leave accordingly during the hearing before me; in Probate business leave is a matter of course. 9 The plaintiff bears the onus of proof, on the balance of probabilities but with due regard to the importance of the subject matter, that the document propounded is in fact the last will and testament of the deceased, duly executed by him and duly attested by two witnesses. The difficulties faced by the plaintiff in discharging this onus of proof are not produced by the terms of the dispositions in the document, which accords in a general way with statements which the deceased has been found to have made during his lifetime, and does not depart from any statements about his testamentary intentions or the terms of his will which he is proved to have made. In or about October 1995 he told Sabena generally the terms of the will which he intended to make and showed her a document with which the document propounded generally accords. He told Mr Hendrik Korporaal, on an occasion which was probably earlier than December 1995, that he had made a will of which Mr Korporaal was the executor, and later (apparently after December 1995) he told Mr Korporaal that he had made a second will also appointing Mr Korporaal executor. On the first occasion he told Mr Korporaal that he had deposited the document for safekeeping at a Building Society in Port Macquarie. On the second occasion he told Mr Korporaal that the second will was deposited for safekeeping at the Building Society. The deceased saw to it that Mr Korporaal made a note recording the name of the Building Society; and when the second will was spoken of he sternly rebuked Mr Korporaal when he said that he did not have the note available. He did not ever tell Mr Korporaal that the document was anywhere else; but when Mr Korporaal inquired after the deceased's death, the Building Society did not hold any such document. 10 The deceased had a safe in his house, access to which was controlled by a key. On one occasion he showed Mr Korporaal the safe; but he did not tell Mr Korporaal that his will was or would be in it. If the deceased did in fact ever place the document propounded, or any other will, with the Building Society in Port Macquarie for safekeeping (and the evidence does not show that he did, only that he said that he had) it seems extremely unlikely that the document would have left the Building Society's keeping in any other way than by being returned to him; if such a document was returned to him, it might have been returned to him to be revoked by destroying, or by a later document; but if he kept it the most likely course is that he kept it in his safe. However he had at earlier times spoken of keeping a will under a drawer in his house. There is no evidence that the deceased ever made any statements or promises about the terms of his will to Mrs Sullivan or to any of the children of Mrs Sullivan. 11 In contested probate business the Court expects to hear the evidence of attesting witnesses or at least one of them, if available, and it is usual that the attesting witnesses give evidence viva voce and do not deal with attestation only on affidavit. However this is not a strict rule and is subject to their availability. If witnesses are simply unavailable (and these witnesses are unavailable because they cannot be identified, if they really exist) the Court decides on whatever evidence is available. In the present case no one who has given evidence and dealt with the subject has identified or been able to identify either of these signatures or purported signatures as the signatures of any identifiable person. Each side has advertised in newspapers circulating in Port Macquarie calling for an attesting witness or witnesses; the advertising was not intense; but no-one has come forward or been identified. A party propounding a will has the benefit of a presumption of fact that the execution of the document was regular; but the force of this presumption depends on the view taken by the tribunal of fact and is influenced by the apparent overall regularity of the events. The events relating to the document and the way it came into the possession of Janneke de Jager are not at all regular. 12 There is no evidence tending to show where the deceased was and what he did on 5 December 1995; all that is known is that by then he had moved to Port Macquarie and lived in his house there. 13 The events put forward by the plaintiff are truly remarkable. It is truly remarkable, if it is true at all, that a document which was executed as a will, and was probably in some way in the keeping or under the control of the deceased in Port Macquarie late in his life, but could not be found after his death in his house, in his Building Society, or by enquiries of solicitors with whom he has dealt, should be placed in the mailbox of the person who stood to gain most by it by an unidentified person, a mailbox in Stedum in the Netherlands, a long way indeed from Port Macquarie, more than five years after his death; soon after all involved in the estate had been in one way or another involved in a hearing and decision about whether there was a will and where it was. A novel with so strange a plot resolution would be unlikely to find a publisher. 14 In approaching issues of fact in the present application for probate it is important to keep in view that the plaintiff bears the onus of proof that the document is in fact the last will of the deceased, involved in which is that it had not been revoked at the time of his death. The circumstances in which according to Janneke de Jager's case the document came into her possession, and became known to her at all, are suspicious. The evidence of the circumstances in which she received it is evidence of herself and her husband, corroborated to some degree by her daughter Sabena that Sabena saw the document later on the day it was first received. Janneke de Jager is interested in that the greater part of the assets would flow to her under the document, rather than one-fifth on intestacy. Sabina is also a beneficiary, and Mr Frans de Jager can be identified in interest with his wife. All four other sons and daughters of the deceased who would take on intestacy receive no benefit and Tineke is expressly excluded. Unless and until Janneke de Jager received the document the appropriate inference (as Gzell J's reasons show) is that a will such as this had been revoked. There is no evidence establishing in a clear way where the document was at any time before 5 April 2007, more than 11 years after the date it bears; no evidence shows in any direct way that the deceased executed it or when, or where he then was, or who was with him, or what happened to the document after that. Evidence of Mr Korporaal shows that the deceased told Mr Korporaal that he had deposited wills, two one after the other, in a Building Society but no evidence establishes that he actually did deposit a will in a Building Society, or that if he did he removed either of them from the Building Society; no time, no circumstances. 15 No evidence establishes or provides a clear basis for an inference that a will was in the safe in the deceased's house at the time of his death or at any earlier time; or that it was removed; or how the safe came to be found open after his death; it may have been left open by him, or it may have been opened by some person whom evidence does not identify. Even if some relative or someone closely associated with the deceased did open the safe, or ransack his house, shortly before or shortly after his death it should not necessarily be inferred that this document was somewhere in the house or the safe and was removed and concealed; it could have been somewhere else; it could have been located later, perhaps much later. The Sullivan beneficiaries have no known associations with the Netherlands, and the possibility that they or someone associated with them placed or caused the envelope containing the document to be placed in the mailbox, not through the post but by hand delivery, seems very remote, almost fantastic. Tineke Wyma lives in Holland; she was not in Australia about the time of the deceased's death, although there is evidence that she visited Australia later and met Mrs Sullivan. The possibility that she in some way got or controlled possession of the document, transported it to the Netherlands and then placed or caused it to be placed in Janneke de Jager's letterbox is also extremely remote. All these conjectures are so improbable that positive findings of fact cannot be based on them; but it should be recognized that they are possible. The author or writer of the anonymous note accompanying the document has not been identified. 16 On the other hand it was not suggested in cross-examination of Janneke de Jager, her husband or her daughter that the events of 5 April 2007 of which they gave evidence were fabricated, or that the document was fabricated, or that the accompanying note was fabricated. 17 It is common that assumptions favourable to the validity of documents produced as wills are made, but the basis on which courts do so is related to the apparent regularity of the circumstances and events. Where a will which on its face purports to have been prepared and executed in a solicitor's office is found in the custody of the solicitor's firm after the testator's death, the surrounding circumstances strongly support its authenticity; and similarly when a will is found in a safe place where the testator may well have left it. Circumstances of regularity can overcome the lack of direct evidence of the event of executing the will, inability to locate or even to identify attesting witnesses or other lack of direct proof. Janneke de Jager's case has none of this assistance. 18 These considerations enhance the significance of evidence bearing on whether the document in truth bears the signature and on its face purports to have been executed by the deceased; and the related but less important matter whether its contents were written by him. 19 The defendant tendered a report by Ms Michelle Novotny, a Handwriting and Question Document Examiner. Ms Novotny is an Honours graduate in Science with over 10 years' experience in her field, in the course of which she has engaged in teaching and research, presented research papers at specialised conferences and has been a member of several societies of persons working in the field. She has a great deal of practical experience, including research for and giving written and oral evidence in litigation. I accept that she has relevant expertise. She has expressed her views with moderation and acknowledged incertitudes, and this accords with my understanding of what handwriting expertise can do; certitude is rarely available. 20 Ms Novotny had before her 13 assessment documents including some which bore signatures and some which bore other handwriting. Most of the specimen documents had no more than a signature or a few handwritten words. Her opinions did not include any clearly stated opinion on whether the signatures on the will were or were not those of the late Mr Wyma. She said in her report "The signature examination is limited by a relatively small number of specimen signatures and further limited by the lack of contemporaneous specimen signatures. The combination of these factors precludes an assessment of the signature style of Mr Wyma in December 1995." She treated five of these documents (one with writing on several pages) as acceptable. 21 Ms Novotny made an examination of the document propounded using microscope and a Video Spectral Comparator and concluded that a number of different inks were used in the handwriting on the document. This implies that several different ballpoint pens and a black fluid ink pen were used for various parts of the handwriting. She was of the view that there were at least two writers of handwritten entries in the will (apart from the witness' name). Her opinion points, not with certitude, towards the conclusion that parts but not all of the handwriting on the will were written by the writer of the specimen handwritings which she accepted. However from her conclusions it appears that in her opinion it is unlikely that the same person wrote all the handwritten material. Ms Novotny made a very close examination of the purported signatures on the document and of the specimen signatures, and commented on observed similarities and also differences. She commented on what in her interpretation was a lower degree of fluency in the signature on the document than was shown by specimen signatures. Otherwise there were no inherent features of a simulated signature such as unusual pen stops, lifts and retouching. 22 Her opinion was inconclusive on whether or not signatures on the document were written by the writer of the specimen signatures; she pointed to observations which could support either conclusion, and I understand from her report that she saw no clear fact or circumstance requiring either conclusion. 23 Ms Novotny's report tends to show that the body of the will was written in circumstances which were at least very unusual; it could be said that it is difficult to follow what those circumstances can have been, in which writing was placed on the document on several different occasions, and probably by at least two, perhaps several, different persons. 24 My own observations add somewhat to the general disquietude produced by Ms Novotny's evidence. It is not easy to see why, when writing out one's will, one would spread its provisions over several pages, requiring much more space than was necessary, with a large spaces at several points between written passages. The document is very odd and strange, and could not be thought of as a systematic production by someone who sat down to write out his will. 25 On the other hand I could suppose the case of a person who took up the task on a number of different occasions, but left the task aside at several intervals; or of a person who got the help of another or others in doing so. A person could behave that way; but it is improbable, particularly a person who was able to write himself and had thought matters through far enough to have a will form supplied to him; such a person would, as a matter of probability, sit down and write out what he wanted to write out. These considerations, like the evidence of Ms Novotny, do not lead to any clear conclusion for or against the document. However they are relevant when I address whether I have an actual persuasion that the document is in fact the will of the deceased. 26 Mr Korporaal gave evidence that he recognizes the signature as that of Willem Wyma. I was impressed with Mr Korporaal's sincerity, and I regard him as genuine in his expression of view. 27 It should be said that he has not been shown to have any particular expertise in recognizing signatures or other handwritings; he can be assumed to have not more than the ordinary expertise of literate persons, perhaps enhanced to some degree by the circumstance that he completed tax returns for Mr Wyma for some years, which would give him some opportunity for familiarity with his signature. For all significant purposes he has no expertise. He did not speak by comparison with other identified signatures. The courts have long received the evidence of lay persons of recognition of handwritings including signatures. 28 Sabena Langtinga also gave evidence of recognizing the signature on the will. She is in no position of expertise, and does not have the experience which Mr Korporaal had. 29 Consideration of the authenticity of wills, as of other documents, it is usually much affected by circumstances of prominence. The will produced in some circumstances of regularity, for example from the custody of a lawyer, a bank or building society, where the testator could be supposed to have deposited it for safekeeping can be more readily accepted. Where everything depends upon opinion about recognition of handwriting to establish that the document is the deceased's will, or had any connection with the deceased at all, the force of any doubts about recognition of handwriting is enhanced. Even if it were established (and I do not regarded it as established) that at the time of Mr Wyma's death he had made a will which was in his safe at home, but the safe was ransacked and the will removed by other persons in the few days before Janneke de Jager arrived from Holland, or even if it was established that the testator made a will and deposited it with his Building Society, from which it was picked up at an unknown time, those circumstances would not support a conclusion favouring the authenticity of the document which appeared in the de Jager's mailbox, on the far side of the world, five years after Mr Wyma's death, delivered by no-one who has been identified, and held in the interval in circumstances which no evidence reveals. There is room for suspicion that someone in the Sullivan family or someone connected with them, or someone who acted in their interest, ransacked the house, opened the safe and removed the document. There is room for suspicion that Tineke or someone associated with her in some way got possession of the document, held on to it and became stricken with conscience when Gzell J's decision was known. But reflection shows that these are no more than suspicions; they are not supported by any credible evidence and they are not supported by probability; altogether to the contrary, anyone who consciously dealt with the document in a wrong way is most unlikely to have kept it or left it in existence, or sent it to Holland, or directed it into the mailbox. I have carefully weighed these suspicions, and come to recognize them for what they are; unsubstantiated suspicions. 30 The plaintiff's case has not brought my mind to the position where I am able to make a finding on the balance of probabilities, and to say that I have actual persuasion that the document was indeed signed by Mr Wyma. 31 I am in a similar state of mind with respect to the question whether the signature at the end of the document was witnessed by two witnesses and duly attested. The printed directions on the will form say "The witnesses, who have watched the Testator signed the Will, should then place their signatures near every signature of the Testator. On the last page the witnesses must write their names and addresses under their signature. All signing must be done in the one 'sitting' and it is preferable that everyone use the same pen." 32 It was not completely necessary to comply with all this advice, but it was good advice and was available to whoever used the will form. The signature of witnesses appear only after the second and last purported signature of the deceased at the end of the will. It was not legally necessary for the witnesses to sign after the signature which appeared at the bottom of page 2, but it would have been a prudent thing to do, it would have contributed to the apparent authenticity of the document, and it would have carried out the printed directions. 33 In the will form there is a dotted line next to the word "signed" for the testator's signature. The signature is below not above or on the dotted line, a curious circumstance. There are three dotted lines against the attestation clause, suitable for the signatures of witnesses. The signature or signatures purportedly of witnesses appear only on the middle line, beside each other. I find this a curious circumstance. The first "Carrol Watkin" (or whatever it says) may be a signature; it may be an attempt to write out clearly the entirely undecipherable signature which follows. That signature begins what could be a letter "C" as does the name Carrol. There is no identifying material such as a clearly written name and address, or any other identifying material relating to the witnesses. I find it is striking that it has not been possible to identify, even in a tentative way, anybody sufficiently associated with Mr Wyma to come under consideration as possibly being a witness. 34 I formed a favourable impression of Mrs de Jager, her husband and her daughter as witnesses. To me they gave every impression of sincerity. I am conscious however that Mrs de Jager has behaved in ways which revealed a very strong sense of engagement in the controversy with Mrs Mouglalis and the Sullivans. She did not accept their paternity with appropriate readiness although it was supported by scientific evidence which could not be questioned. She expressed dissatisfaction with the decision of Gzell J with surprising vigour. However I do not disbelieve her evidence, or Mr de Jager's evidence, about how the document came into their hands. It was not suggested in cross-examination that they fabricated it, or had any part in fabricating the document. A finding that they had could not be made, in the absence of any cross-examination confronting them with the suggestion and giving them an opportunity to respond to it. However their evidence about the circumstances in which they received the document does little to support confidence in its authenticity. It came, as it were, out of the middle of the air, in a very unlikely part of the world, a few weeks after the decision of Gzell J to the effect that there had been such a document and it had been revoked. 35 There is room for suspicions about the conduct of members of the Sullivan family in searching Mr Wyma's house, the state of the house, and the state of his safe after his death. Suspicions could also fall on a neighbour named Eric. This group of people or some of them may have found Mr Wyma's will and dealt with it in some wrong way; they may have suppressed it. The Sullivans had motivation. But there is no evidence at all from which a finding that any of them did any such thing could be based. Their case does not depend on their own merits. In any event nothing has been proved against them. The suspicions I have reviewed could not be thought of as anything more than unsubstantiated suspicions. There is no evidence connecting any of them with the document which is now put forward in any way at all. 36 I found this case very troubling and took some months to consider it. I clearly see the possibility that the document put forward truly is the will of the late Willem Wyma and that his estate ought to be administered according to it. I have to come to a conclusion based on the probabilities as I assess them to be. In a context where cases are decided on the balance of probabilities, I am unable to come to an actual persuasion that the document is the last will and testament of Willem Wyma, and I am unable to come to an actual persuasion that it was duly executed and attested by two witnesses as the law requires. 37 For these reasons the proceedings will be dismissed. 38 Gregory and Scott Sullivan each made belated claims under The Family Provision Act. There is not much strength in either claim in that they were not dependent on Mr Willem Wyma at any stage of their upbringing. However they are his sons and it was not possible for him to resign as a parent; indeed he did not do so, his behaviour towards them showed that he acknowledged that he was their father. They were most unlikely in any circumstances to obtain provision in any amount greater than their entitlement on intestacy. Their claims will be dismissed. 39 Orders:

Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma

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Judgment (21 paragraphs)

Cited By (6)