Voros v Janosne; Estate of Anna Gdyro

Supreme Court of NSW|2000-11-21|Before: Young J, Powell J, Ocsi P, Mr J

CITATION : Voros v Janosne; Estate of Anna Gdyro [2000] NSWSC 1166 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 103275/99 HEARING DATE(S) : 17, 21 November 2000 JUDGMENT DATE : 24 November 2000

Susan Voros (P) PARTIES : Avar Janosne (D1) Horvathne Merkly Emma (D2) Kaszas Gyorgyne (D3) JUDGMENT OF : Young J

COUNSEL : J B Whittle SC (P) V R Gray (D) SOLICITORS : Aitken McLachlan & Thorpe (P) Lang Gellert & Noonan (D) CATCHWORDS : EVIDENCE [54]- Opinion- Expert noticing pattern whilst perusing material in course of ordinary work as an expert- Although non-expert opinion, admissible SUCCESSION [33]- Execution- Will on scrap of paper- Suspicious circumstances- Standard of proof- Court not satisfied will genuine. LEGISLATION CITED : Evidence Act 1995, s 78 Wills Probate & Administration Act 1898, s 18A Bailey v Bailey (1924) 34 CLR 558 Baker v Batt (1838) 2 Moo 371; 12 ER 1026 McFadden v Murdoch (1867) 1 IRCL 211 R v Whitby (1957) 74 WN (NSW) 441 CASES CITED : Re Breen [1927] VLR 164 Re Kenkalo (23.10.1991 - Powell J) Seltsam Pty Ltd v McGuinnes (2000) 49 NSWLR 262 Shepherd v The Queen (1990) 170 CLR 573 Sim v Powell (1997) 22 Fam LR 243 Weal v Bottom (1966) 40 ALJR 436 DECISION : Probate refused.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

1 HIS HONOUR: These proceedings have been brought to establish whether the late Anna Gdyro (the deceased) died testate or not. The plaintiff has produced two documents for which she seeks probate. The first is a white card (PX80) on which there are six lines of typing and some handwriting. The card appears to have been signed on the right hand side by the deceased and Mr and Mrs Horvath. It bears typewritten date 28.06.97. I will call this the "white will". 2 The second document is typed on part of a brown envelope (PX81), which envelope originated from the Land Titles Office. Apart from the typing, there is handwriting in black ballpoint ink, "Mrs Anna Gdyro" and "end of June 1997". I will call this the "brown will". 3 The deceased died on 16 June 1998 aged 82. She had been twice married but had no children. The first defendant is the deceased's sister. She also had a brother Frank, who predeceased her, leaving issue, the second and third defendants. All the defendants live in Hungary. The plaintiff was a friend of the deceased. She is a nurse and had attended to some of the deceased's needs over the four years prior to the deceased's death. 4 The typed part of the white will is in two parts. At the very top of the paper, squeezed into three lines are: "I, Anna Gdyro, Neutral Bay state: my inheritors are:Evi K. Ocsi P."

Then there is what appears to be a capital "Z" with an "s" over the top of it, then the words: "Zsuzsa V.= equally. My niece, my nephew, my friend: Next of kin. (Mrs E. Kaszala, Mr J. Paszterko, Mrs. S. (Zs.) Voros." 5 The second typed part of the white will is as follows: "I, Anna Gdyro state: I HAVE GIVEN MY KEYS TO ZSUZSA Anna G, signed the statment in presence. Sydney 28/06. 97. MR./MRS.HORVATH 11/A DORSET RD. NORTHBRIDDGE, NSW" 6 The balance of the paper contains handwriting in green, black, blue and red ballpoint ink. The green writing commences with the words "Let me live". Although at first blush it would appear that in the testamentary documents those words might have some significance, exhibit PX84 shows that between 1972 and 1974 the deceased was concerned with the production of a film called "Let Me Live" and was arguing with the Indian Customs (she lived with her first husband in India) about the film stock. The green writing marries very well with the correspondence in PX84 as to the deceased's concerns with that film stock. This makes it, to my mind, more probable than not that the green writing was written on the paper in about 1972. However, the paper has been cut with scissors on the left hand margin and at the bottom. How, why, or when that happened is not clear from the evidence. 7 The signatures of the deceased and Mr and Mrs Horvath are in black ballpoint ink. The handwriting evidence shows two peculiarities regarding the signatures, (a) that the deceased used an upper case "A" when signing her name when she usually used an enlarged lower case "a"; and (b) she and the witnesses have used different pens. 8 The brown will is typed as follows: "DECLARATION by ANNA GDYRO; 19. RAWSON ST. NEUTRAL BAY .2089.N.S.W. AUSTRALIA. Wishes of ANNA GDYRO/widow/ from Neutral Bay.1 I- all my former statment are invalid now - direct that my whole Estate and all my possessions be divided - equally - between; My niece Evi/Mrs. Kaszala/, my nephew Ocsi/Merkly Evas children and my friend, NEXT OF KIN; Zsuzsa/Mrs. Suzanne Voros in Hornsby./ Except The Camel - which I promised to Mr/Mrs Chapman. If my Sister- ANKA- survives me, the above named should hand over some money to her. My executors; EviaK. and Zsuzsa. Evi and Ocsi/Mr. Paszterko/ locating in Hungary. /XXXX/Kecskemet/ I- Anna Gdyro wish - in any case of accident- please, notify Mrs .Suzanne/Hornsby/ph 011-61-2-94828653- Voros to transfer me back to Sydney. I have handed over my keys to Zsuzsa, to look after my house... garden , post...until my return from Hungary in okt. 97. Signed by Anna , in our presence." 9 The bottom of the envelope appears to have been cut off. Whether there were any signatures after the words "in our presence" or not, is unknown. The evidence shows that the "Camel" was an item of furniture. 10 The plaintiff says that she was a close friend of the deceased from 1994. The deceased's husband died on 16 May 1997. The deceased's 1997 and 1998 diaries are in evidence, which give considerable details as to the last 18 months of her life. There are certainly a large number of references to the fact that the plaintiff had called and had assisted the deceased. For instance, the deceased seemed to be particularly appreciative of being taken by the plaintiff to mass shortly after her husband died, the service being on 21 May 1997. 11 The deceased's 1997 diary states that on 6 June 1997, after a visit to Darling Harbour, the deceased fell in George Street, Sydney on her nose and hand and noticed her hand was paining and swollen. She went to the Royal North Shore Hospital the next day and her hand was put in plaster at 2 pm and she arrived home by taxi. The diary suggests that her hand was in plaster until 18 June 1997, when her diary says "to RNSH plaster off?" written in blue. Then she has written in black "yes 1.30 pm". 12 The plaintiff says that she suggested to the deceased in about June 1997 that the deceased should make a will. The plaintiff photocopied some pages from a law handbook in the library of the Adventist Hospital where she worked and handed these to the deceased. The plaintiff says that the deceased told her that she had been talking to two solicitors about a will, one who was involved with a charity in which she was interested. However it would appear from inquiries that she never did make a formal will. 13 The pages from the law handbook are significant and indeed Mr Whittle SC, who appeared for the plaintiff, spent some time in his address going through their significance. The pages constitute PX01. Someone, (more likely than not the deceased) has made markings on the pages in yellow highlighting, by underlining with a black ballpoint pen and also by ticking various items and putting question marks against others. 14 It would seem fairly certain that aided by these pages, the deceased, without legal assistance, was able to have her husband's interest in their home transferred to her, and for that purpose attended the Probate Office and the Land Titles Office. The records show that the deceased personally applied for the Certificate of Title after the Transmission Application was registered and she signed the Registrar General's book certifying that she collected the Certificate of Title on 2 July 1997. 15 An officer of the Land Titles Office has said that the Certificate of Title would have been in a brown envelope, identical to the envelope on which the brown will was typed. We know that that envelope was picked up from the Land Titles Office on 2 July 1997. 16 The plaintiff says that on 17 June 1998 she was in the deceased's house tidying it up and looking for documents of significance and she took possession of various books and papers. On 13 August 1998 she found a white envelope marked "Susan Voros". She opened it and found in it the brown will, a note from the Land Titles Office bearing date 26 June 1997 and a certificate relating to the deceased's husband's death. 17 The plaintiff says that she found the white will behind the vinyl cover of the deceased's red address book on 17 August 1998. She says the white will was in a folded envelope, bearing the word "fontos", which is Hungarian for "important". 18 The principal issue is whether the white will is the last will of the deceased and should be admitted to probate. There are complications caused by various factors which I will deal with later in these reasons, as well as by the existence of the brown will. 19 We know that the brown will could not have been created before 2 July 1997. The white will bears the date 28 June 1997. It may have been made on that day, or may possibly have been made during July 1997. We do know that the deceased flew to Hungary during 1997. The 1997 diary suggested that she did so on the 7.40 pm plane from Sydney on 7 August 1997. Therefore this must be the last date on which the white will could possibly have been made, if it was made, as is more likely than not, during 1997. 20 The brown will might have been made after the white will and might have had the effect of revoking the white will. The brown will is significant because of the fact that it exists. The fact that it directs that the deceased's estate be dealt with in a similar way to the white will may add to the suspicious circumstances surrounding the whole testamentary conduct of the deceased. 21 Obviously, the brown will has not been executed in accordance with the Wills Probate and Administration Act 1898, so that if it does become an issue, one has to turn one's mind to the provisions of s 18A of that Act. However, Mr Whittle SC made it quite plain that his principal case was based on the white will, but that his client considered that she should draw the attention of the Court to the brown will which might be a testamentary paper. 22 Mr Ventry Gray of counsel, appeared for the defendants. The only evidence that the defendants put forward were the reports of Mr Paul Westwood, a handwriting expert. I will come to those reports in due course. 23 The deceased's next-of-kin are all resident in Hungary and did not give evidence, as obviously they were not in possession of any evidence as to the facts and circumstances leading to the creation of either the brown will or the white will. 24 So far as the plaintiff's case is concerned, the plaintiff and Mr and Mrs Horvath gave evidence and there was ancillary evidence from three other persons. The plaintiff's case simply was that there was a document executed in accordance with the Wills Probate and Administration Act; that two witnesses said that they were asked to witness it in the presence of the testatrix; that the will made provision, which was not surprising, for this lady and it should be admitted to probate. 25 The defendants' case was that the circumstances appearing from Mr Westwood's reports and from the whole of the evidence were such that the Court could not be satisfied that the white will (or even the brown will) was the last will of the deceased. 26 One starts a consideration of this type of case by referring to what Isaacs J said in Bailey v Bailey (1924) 34 CLR 558, 570: "The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument". 27 One of the cases referred to by Isaacs J when making that statement is the decision of the Privy Council on appeal from the Prerogative Court of Canterbury in Baker v Batt (1838) 2 Moo 371; 12 ER 1026 at 1027. Parke, B when giving the decision of the Board said this: "…in a Court of Probate, where the onus probandi most undoubtedly lies upon the party propounding the Will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied, that the paper in question does contain the last Will and Testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate. And it may frequently happen that this may be the result of an inquiry in cases of doubtful competence in particular, without the imputation of wilful perjury on either side; or it may be, the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exists". 28 The next paragraph of the judgment goes on to say that logically, in many cases it can be said that the Court could only have found against the will by disbelieving the oaths of the attesting witnesses. To take that view would mean that they must have committed perjury, which is a very serious matter and which a court should not find without comfortable satisfaction. 29 However, the Privy Council says that because the Court has to be satisfied of the will in all the circumstances, it may not grant probate, even if it does not think that the attesting witnesses have committed perjury. In other words, to take the analogy of a criminal Court, as judges have often said to juries, it's not the police who are on trial, it's the accused. 30 In the present case, it is not the attesting witnesses who are on trial. The question is whether the Court can be satisfied, in all the circumstances, that either the white will or the brown will is the last will of the deceased. 31 Although most of the cases in this area deal with questions of the soundness of mind of the testator, it is clear that the principle noted above extends to cases such as the present. Apart from the two I have already cited, a third case in the same area is Re Breen [1927] VLR 164. 32 Having stated the question that I have to consider, I must now review the evidence. 33 The white will was witnessed by Mr and Mrs Horvath at their home in Northbridge. Mr Horvath's evidence was that his wife told him that the deceased had telephoned to say that she would be dropping in to have her signature witnessed on a document. The impression Mr Horvath got was that the document was to entrust a certain person with something and to show where the deceased would be leaving her keys. Mr Horvath was out in the garden when the deceased arrived, presumably by taxi. He went into his kitchen where the deceased then was. The deceased sat at the kitchen table. She emptied her handbag on to the table and eventually found the white paper. Mr Horvath says that he remarked on its scrappiness but the deceased just laughed. The deceased did not, as far as Mr Horvath can now remember, refer to the document as her will. However, she signed it in their presence. Mr Horvath then sat down opposite the deceased, signed the document and then handed it to his wife who was on his left. She signed it and they then handed it back to the deceased. 34 Mr Horvath can remember that there was green and red handwriting on the paper. He did not take notice of what was written on the paper. He cannot remember the deceased referring to the document at any time as a will. He cannot swear that the top three lines of typewriting were on the paper when he signed it. He thought the paper had something to do with authorisations for the deceased's forthcoming overseas trip. 35 Mrs Horvath gave similar, but by no means identical, evidence. She says that the deceased told her that she needed a document witnessed and that she needed two witnesses. At this stage Mrs Horvath called her husband in from the garden where he was working. When her husband came into the room the deceased said "I want you to witness my signature and I want to give the keys to Zsuzsa", namely the plaintiff. 36 At pp 30 to 31 of the transcript, Mrs Horvath was being cross-examined about the white Will:

"Q. Can you remember whether Mrs Gdyro gave any explanation about this paper to Mr Horvath before he witnessed her signature?

A. No, I can't remember. She only said that she wants to entrust the keys to someone.

Q. Can you remember whether anybody asked Mrs Gdyro why she was using such a scrap of paper?

A. We did make some kind of a remark, I and also my husband, I think, about this, yes.

Q. Did Mrs Gdyro say why she was using this sort of paper?

A. She said something like, you know, that everything of hers is like this, something like that.

Q. Did you understand that this piece of paper you were signing had any legal importance?

Q. Did you look at the piece of paper while, before, or after you signed it?

A. I just looked at that piece of paper. I saw that there was some stuff written on it and there was something typewritten on it.

Q. Can you remember what was written on it and what was typed on it, that is to say, what it was about?

Q. If it was typed or written in English, could you read it?

A. Surely I would have been able to read it but what I would have understood." 37 She was then shown the white will. I should note that Mrs Horvath gave evidence through a Hungarian interpreter. She indicated that she could not read English very well. However, when she was asked later to read what was on the white will she did so fairly accurately, though very slowly, so she obviously can read some English. 38 The cross-examination then continued and elicited that Mrs Horvath could remember that there was some coloured handwriting on the document. Then the following occurred at T31:

"Q. Can you remember seeing the typewritten part that starts, 'I, Anna Gdyro, state, I have given my keys to Zsuzsa'?

A. I did see that but what it was I don't know. I saw the paper, this paper.

Q. When you say you saw the paper, are you saying that you remember seeing this paper because this is the paper that you signed?

Q. Can you remember how much of the typing was on the paper when you signed it?

A. Well, it looked the same, it was the same. How many lines there were, I don't know, but the paper looked the same.

Q. Is it possible that the top three typed lines were typed after you had signed it?" 39 At this stage Mr Whittle SC objected. I had already made a note to the effect that I had assumed from the last answer that the witness was not completely sure that the top three lines were on the paper when she signed it. There was some discussion and when I indicated my view, the question was, I thought withdrawn, though the transcript said it was disallowed in that form. Whether it was the result of that discussion, or some deeper recollection of the witness, at that point she started to be far more positive about what was on the document when she signed it than she been on the previous page. She said at T 31-T32:

"A. I don't know how many lines there were but I am sure that the paper was full written, full." 40 When counsel asked what that meant. She said:

"A. That's how it looked, like it looks now. I can't say anything else." 41 It was later suggested to Mrs Horvath that when she signed the document, the top typewritten line on the paper was what is now the fourth line, to which she said:

"A. You mean this one was the first one? That's impossible because it was full, the paper. No, no, the paper looked like this, exactly like this." 42 Thus the final account that Mrs Horvath gave really was that she couldn't remember how many lines of typing there were when she signed the document, but she was now sure that the paper was "full written". That is, that it looked the same then as it does now. 43 Mr Paul Westwood gave two reports. In his first report dated 7 March 2000, Mr Westwood opined that the white will was not genuine, but had been produced by some person taking advantage of a document bearing the signature of the deceased, typing what purported to be the will at the top. He also cast aspersions at the brown will. 44 Mr Westwood is an experienced document examiner. However, I was not, I must say, particularly impressed with his evidence on this occasion. There are four particular matters about which I should comment: A. There is a considerable amount of very marginal material in the reports. One was the fact that the upper case "A" in "Anna", is on both the white will and the brown will. It was hardly ever otherwise used. However, though Mr Westwood probably never saw them, there are other examples in evidence (DX84) of the deceased using an upper case "A" in her signature. In the same category is the analysis of the typewriters used to create the documents in DX84. As those documents were created in 1970, the question of what typewriters were used is really of marginal significance. B. Mr Westwood asserts the green handwriting was made after typewriting on the white will, which would not appear, on any stretch of the imagination, to have possibly been the case. C. Mr Westwood appears to have considered that he did not have enough time to do a proper analysis and blamed the Court, or its registry, or the parties, for not letting him have the documents for a sufficiently long time. If an expert witness has insufficient time to do a proper job, he should not give a report at all. D. The reports rely on a number of observations which are not within the usual expertise of a handwriting expert, such as the material in para 7(d) of the first report, to which I will return. 45 Mr Westwood makes various "findings", including the one I have already mentioned. 46 So far as the brown will is concerned, Mr Westwood is of the view that the typewriting is over the handwriting, ie, the typewriting was done later. He also points to the fact that an impression of part of the handwriting on the brown will, being the words "end of June 1997", came through on the other side of the envelope, but the words "Mrs Anna Gdyro" did not. That strongly suggests that something was in the envelope when the deceased wrote her name on it. It is probably more than speculation to think that the words "end of June 1997" and "Mrs Anna Gdyro" may have indicated that the contents of the envelope, at that stage were the deceased's documents for the financial year ending June 1997, which might have been being prepared for an accountant, or the like. 47 Mr Whittle SC says that that is just speculation and there is no evidence that the deceased ever had an accountant. However it is the sort of endorsement one would make on a brown paper envelope, especially in the light of Mr Westwood's finding about the way in which only part of the handwriting came through. However, the brown will is of relatively peripheral importance in this case; one must focus on the white will. 48 There was one question of evidence that arose from Mr Westwood's first report. I admitted the evidence and said that I would give my reasons later. As I have said, the white will contains three lines of typewriting closely squeezed together at the very top of the document, then there is a gap before the double spaced writing about the deceased's keys and the white will is on a scrap of paper. At para 7 of his first report Mr Westwood said: "In my career of more than thirty years as a document examiner I have probably examined hundreds of documents said to be testamentary instruments. In my opinion both documents ... are unusual testamentary documents in terms of their layout and the use of scrap paper. It is not unusual in my experience to find that fraudulent Wills and other documents are produced using what appears to be scrap paper or other documentation bearing the signature or the handwritten name of the deceased or alleged party to an agreement". 49 I admitted that evidence. Mr Whittle SC said that it was inadmissible because it was not within Mr Westwood's expertise and he had no particular qualifications to make a statement which impugned the document, more or less by a side wind. In my view, I properly admitted that evidence. 50 Under s 78 of the Evidence Act 1995, certain lay opinion is admissible, within limits. 51 As Wigmore on Evidence says (Vol. 9 of Chadbourn, Revised Edition, 1981) para 2497, which is relied on by Dawson J in Shepherd v The Queen (1990) 170 CLR 573, 579, it must be remembered that "evidence consists of strands in a cable, rather than links in a chain" and that it is often important to make sure that there are, before the Court, all the strands in the cable. 52 This was emphasised recently by the Court of Appeal in Seltsam Pty Limited v McGuinnes (2000) 49 NSWLR 262. Although no expertise is involved, ordinary members of the public may give evidence of matters of the ordinary experience of human-kind, such as whether they consider the person was drunk or not and may give the factors which brought them to that conclusion; see R v Whitby (1957) 74 WN (NSW) 441. 53 As I held in Sim v Powell (1997) 22 Fam LR 243, a person who's bought and sold horses over a large period of time, may give evidence as to the range of value of horses. A person who's been observing in a court of law may give evidence as to what the court has done in the past, from which it might be inferred what a court such as a licensing court may do in the future. 54 Again in McFadden v Murdoch (1867) 1 IRCL 211, the Irish Court of Exchequer held that it was admissible for a shopkeeper to give evidence as to what shortages in normal business practice could be expected to be experienced by a small retailer, in answer to a claim that the only explanation was that an employee had pilfered the product. 55 It seems to me that in the same plight is the case where a person says, as an expert, that they have examined many situations and have noticed when examining those many situations that a certain factor kept occurring. This also fits in with the way in which the High Court dealt with the problem in Weal v Bottom (1966) 40 ALJR 436. 56 In my view these considerations affirm the admission of the particular part of the evidence in question in this case. 57 Returning now to the merits of the case, Mr Whittle SC put that there was no suggestion in cross-examination that the plaintiff did not find the white will or the brown will in the way she says she found them. He put that there was also little doubt that Mr and Mrs Horvath did witness a signature of the deceased in late June, or early July 1997. He also put that the white will makes the sort of dispositions that one would have expected the deceased to make. She had no children. All her relatives were in Hungary and the plaintiff had closely cared for the deceased for the last few years of her life. 58 Mr Whittle SC then took me through Exhibit PX01, the pages of the law handbook to which I have already referred, and noted the way in which the deceased had ticked various items, particularly on pp 1163 and 1166. 59 Mr Gray also considered PX01 to be of significance. He says that it shows quite clearly that the deceased knew of all the formalities for making a will and ticked them and it is quite inexplicable she would do this and then disregard them all. He further submits that the deceased showed in her dealings with the Land Titles Office that she was well able to do something of this nature properly. 60 The deceased showed in her diaries and in the correspondence comprising DX84, though that was written many years ago, a high level of literacy. However, in both the white will and the brown will there are all the hallmarks of a creation by a person of low literary ability. 61 Mr Gray also puts that it is very significant that at no stage, even in front of the Horvaths, did the deceased refer to the white will as a will. Indeed, there is no evidence that she ever acknowledged either document as a will, to any person. He says that there is a high degree of suspicion regarding whether the deceased ever intended either the white will or the brown will to be her last will and testament and the Court could not be satisfied that it was so. 62 Mr Gray pointed to a number of very bizarre factors of the case, including the question as to why use a paper that was 25 years old? Why, if the documents were intended to be wills, would they be left in an address book or an old diary? 63 In reply, Mr Whittle SC said that it may well be that the deceased suffered some degeneration in her literary style in her old age and in any event, there was some typewriting on the white will which must have come from the deceased. What the deceased must have typed herself was not a literary creation. Why then should there be criticism about the rest of the document? 64 He says it was clear that the part about giving the keys to Zsuzsa was composed by the deceased. He says that ultimately, if I accept Mr and Mrs Horvath witnessed the document and Mrs Horvath is right that the document was, when she witnessed it, the same as it is now, then that is the end of the case. 65 Whichever way one looks at it, this is a bizarre case on its facts. I have already referred to many of its bizarre features. There are others, including the statement that the deceased said on her death bed "Jeff later paper", whatever that may have meant. 66 One can think of explanations for some of the bizarre features of this case; some of these explanations are just speculative and of course, one cannot decide cases on speculation. However the fact that one can speculate as to some answers to some of the problems does assist in reaching the final conclusion. 67 I have been particularly interested in the deceased's diaries and in the markings on the pages of the law handbook. These show that the deceased, even in her 81st and 82nd year, was a very meticulous person. The way she has ticked or highlighted the vital parts of the pages of the law handbook shows that she has fully addressed her mind to the matters involved in making a will. She has, with respect to transferring the real estate held jointly by herself and her husband into her own name, followed the correct procedures precisely, without a lawyer. It is, as Mr Gray suggests, significant that knowing the value of the Certificate of Title, the deceased did not leave all her title documents and her so-called "will" together. 68 Furthermore, the diaries show that the deceased wrote down virtually everything that happened in her life. The entries in the diaries probably fall into three categories, viz:

(b) records written probably the same day or the next morning, as to what had happened the previous day and;

(c) other notes made a little later. For example, she even noted on one occasion that the sensor switched the outside lights on during the night of its own accord and what times that happened.

They list, or purport to list, most of the phone calls that the deceased made and to whom they were made, where she went and what shops she called at and what she bought. However, there is no entry whatsoever during June or July 1997 of any visit to the Horvaths, or any mention of a will. 69 Secondly, the diaries also show that she was writing to her sister moderately often, so that it was not a case of a person completely without family, who would not necessarily think of her sister when writing a will. 70 Thirdly, the diaries indicate that the deceased was a very literate lady. She was a lady who could spell words like "statement" with an "e" and that she was not the sort of woman that even with a typewriter, would spell it without an "e" as occurs at the end of the white will. 71 She wrote highly intelligent sentences. She was also a lady who had a very deep social conscience. She was a member of the local branch of the Australian Labor Party. Her 1997 diary shows she took particular interest and rejoiced at various stages of the Patrick Stevedoring case before the courts; that she was also interested in what happened in Indonesia and other parts of the world and maintained that interest up to the end. Accordingly, one has to ask whether a lady of that ability, would wish to leave as her last will, an ill-spelt three line message on an old piece of paper? 72 There was also another matter which concerned me which points in the same direction, and as a tribunal of fact I will state it, though by itself it is no more than a "strand of the cable". Experience of mankind shows that it is extremely difficult to put into an old manual typewriter, as this was, a small piece of paper and align it properly, so one can type at the very top of the page. We know that the deceased had an injured hand in June 1997. The plaster, according to her diary, was taken off on 16 June 1997. It was obviously not her writing hand, but to adjust a piece of paper of this nature into a typewriter one would have needed to use both hands. Why, it might be asked, would a person, who had resources of paper and a typewriter, have gone to the trouble of putting a scrap of paper, 25 years old, into a manual typewriter and fiddling about with her hurt hand? An explanation is that that had to be done by someone, because the signatures were already on the paper. It is hard, however, to see why a rational woman, in her 80s, would have done such a thing. 73 This is not a case where I can say that anyone has committed perjury. It is a situation where the Court must remember that the deceased cannot give evidence herself and in this case the relatives cannot either and that it is necessary for the judicial conscience of the Judge to be satisfied in the interests of the whole community that the document that is propounded for probate is the last will of the deceased. 74 In view of all the suspicious factors in the case which I have highlighted during these reasons, I could not be so satisfied. Accordingly I will not admit the white will to probate. 75 Almost everything I have said, if not more, can be said about the brown will and indeed, there is the additional problem with the brown will that it has not been properly executed, or if it has been, the signatures have been cut off. 76 Mr Gray rightly referred to the words of Powell J in Re Kenkalo (23 October 1991, unreported) at p 11, where his Honour remarked that: "Whilst s 18A is remedial in nature, it was not the intention of the legislature that the law should revert to the state in which it was prior to the Wills Act 1837, reintroducing the admittance to probate of instructions for making a Will and the like. All 18A does is to allow a document, which is clearly otherwise a Will but is defective in execution, to be admitted to probate." 77 I do not see how I can admit the brown will to probate. It follows that the suit fails and must be dismissed. 78 Both counsel agree that this is a matter in which the costs of both parties should come out of the estate and I so order. 79 Although final orders have been made in the suit, because there may be some loose ends, I will stand the matter over to my list for mention on Monday 12 February 2001. 80 Exhibits, other than exhibits PX01, PX80-PX85 and the 1997 diary (PX43) can be handed out. *******************

Last Modified: 12/12/2000 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.

(1997) 22 Fam LR 243

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Judgment (31 paragraphs)

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