Was the 1992 will revoked?
12The will dated 7 November 1992 was prepared by Edmond Wardy's solicitor, Mr Peter Cassimatis. He deposed that "some years" after he prepared that will, Edmond Wardy told him that he wanted to prepare a new will and would like to change the executor and change how the property was to be divided. Edmond Wardy told Mr Cassimatis that he had decided to appoint John as his executor because he knew about the properties. Mr Cassimatis prepared a draft will which he sent to Edmond Wardy by mail. On several occasions he asked Edmond Wardy if he was happy with the draft or if he wanted to make changes to it. On each occasion, Edmond Wardy said words to the effect that he would "get onto it and let you know". Mr Cassimatis retired from practice in 2005 for health reasons. On 22 December 2005 Mr Cassimatis sent the original of the 1992 will to Mr Edmond Wardy. In about January 2006 he telephoned Edmond Wardy and asked whether he had received his letter with the will. Edmond Wardy said words to the effect "Yes, I have got it, but can you look after it for me?" Mr Cassimatis declined, but told Edmond Wardy he should ensure that it was put in a safe place. Edmond Wardy said he would do that.
13Mr Cassimatis was unable to attend court for cross-examination for health reasons. His affidavit was read without objection. His inability to attend for cross-examination would affect the weight of his evidence, but no party submitted that I should not accept his evidence. I do so.
14Edmond Wardy had consulted a solicitor, Ms Kathy Klonis, in 2005 with a view to making a new will. Ms Klonis needed more instructions. Edmond Wardy told Ms Klonis that he wanted to appoint John Wardy as his executor because he trusted him. Edmond Wardy did not provide the further instructions to Ms Klonis that she needed to prepare the will, notwithstanding letters written by her dated 6 September 2005 and 25 May 2006 in which she asked him to contact her to make an appointment for that purpose.
15All of the known solicitors of Edmond Wardy were contacted and there is no evidence that he made any will other than the 1992 will.
16It can safely be inferred from Edmond Wardy's conversations with Mr Cassimatis in about January 2006 that Edmond Wardy had not then made a will subsequent to his 1992 will. Had he done so, he would not have responded as he did to Mr Cassimatis' advice that he should ensure that he kept the 1992 will in a safe place.
17Edmond Wardy had a safe place, called the "buffet", to which he had the only key. He kept the key with him at all times. He was secretive about the contents of the buffet. Only John Wardy gave evidence of being with his father when he opened the buffet so that he could see its contents. John Wardy gave evidence that he saw the original of the 1992 will in the buffet as late as May 2009.
18Anthony Wardy gave evidence that in 2006 he observed the deceased tearing up a document or documents that were kept securely in the buffet. Anthony Wardy says that his father put the torn documents in an envelope and told him to throw the envelope out without looking at its contents. Anthony says that outside his father's sight he looked at some of the torn up pieces of paper and saw on them words that included the word "will" and a typed name "J Cassimatis" and the words "I revoke", his father's handwritten signature "E Wardy" in dark ink, and parts of street names of three properties that are specified in the 1992 will.
19Anthony Wardy deposed that he did not think anything further about it until 1 August 2009 when he was at a meeting at the house in Milroy Avenue, Kensington at which John, Sam and William were present together with his mother and brothers, at which John read out a copy of the 1992 will. According to Anthony, after John read the 1992 will, Anthony said words to the following effect:
"After John had read the 1992 Will there was a conversation in words to the following effect:-
Me: 'Man this is like de ja vu. The paper, I've seen this before.'
John: 'Where did you see it?'
Me: 'I can't remember where I've seen it exactly'
John: 'Are you sure? Where did you see it?'
Me: 'I can't remember. Are you sure this is the last will? Are there any other wills?'"
This evidence was corroborated by Hassiba Wardy, but not by any other person present.
20Anthony deposed that the occasion on which he saw his father tearing up some papers, putting them in a large yellow envelope and being told to dispose of the envelope was a Thursday afternoon in about March 2006. Anthony says that at that time he was a student in Year 12, but had come home early on Thursday afternoons as it was a sports day and he was allowed to go home early because of study periods.
21Notwithstanding the elaborate detail in which Anthony professed to recall the events of 2006, I am not satisfied that the events he described took place.
22I reached this conclusion partly because of some internal contradictions in Anthony Wardy's evidence, but primarily because his evidence is inconsistent with other unimpeachable evidence as to the statements made by the deceased after March 2006 about his existing will.
23Anthony Wardy deposed that he saw the typed name "J Cassimatis" and also what appeared to be his father's handwritten signature in dark ink written above his typed name and also his signature at the bottom of a couple of the torn pages. In cross-examination Anthony Wardy was asked how many of his father's signatures he saw. At one point in his evidence he denied having seen his father's signature in dark ink written above his typed name (contrary to what he deposed in paragraph 70 of his affidavit). Later (T143) he said that he saw his father's signature "written on the side of, on the side of you know J Cassimatis". He indicated that the typed name "J Cassimatis" was on the left and the signature was on the right hand side. He later said that he was not sure having seen the signature next to the typed name of J Cassimatis, but remembered seeing them next to each other. Mr Peter Cassimatis witnessed Edmond Wardy's signature and wrote the words "PJ Cassimatis" under his own signature. Those words were in handwriting, not typed. The only place where the typed words "J Cassimatis" appear is on the back sheet of the will. Edmond Wardy's signature was not beside those typed words. Unless two separate torn pieces of paper, one being the back sheet, and the other containing Edmond Wardy's signature, were placed side by side, Anthony Wardy could not have made the observation to which he deposed.
24Anthony Wardy said in his affidavit that it was about 5pm on a Thursday afternoon in March that the episode occurred. In his cross-examination he said that the incident occurred in the night time when there was a light on coming from the kitchen. I can take judicial notice that sunset in March 2006 was considerably later than 5pm.
25In his oral evidence, Anthony Wardy said that he saw part of a date on the torn document. In his affidavit he did not refer to having seen any part of a date on one of the torn pieces of paper. The fact that a witness under cross-examination professes a more detailed recollection than appears in his affidavit can affect the reliability of his evidence, although often it will not. In this case, Anthony Wardy appeared to place the blame on his lawyer for that piece of evidence not appearing in his affidavit, an explanation I do not accept.
26Anthony Wardy's demeanour in the witness box did not fill me with confidence, but I consider that to be an unsafe guide to assessing the reliability of his evidence.
27Although Anthony Wardy is a beneficiary under the 1992 will, he is close to his mother and has an interest in his mother's obtaining the substantially greater share of the estate that she would obtain on intestacy than she and her sons would obtain under the 1992 will. I therefore approach his evidence with caution.
28There is other evidence that forms my primary basis for rejecting Anthony Wardy's evidence. One of Edmond Wardy's solicitors was Mr Kevin Munro who had acted for Edmond Wardy from time to time between 1998 and about May 2008. He gave evidence that at a meeting with Edmond Wardy on 29 June 2007, Mr Wardy said that he was considering drafting a new will and would like to revise his existing will. He spoke of having an existing will. His particular concern was that the Public Trustee was the executor of his existing will. Mr Munro was unshaken in his evidence. He had a clear recollection of events. He had no motive or interest to say anything other than the truth. I consider him to be a reliable witness.
29Edmond Wardy must have been referring to his 1992 will because for the reasons previously given, it is clear that he had not destroyed his 1992 will by January 2006 and from at least 2005 he would not have made a new will appointing the Public Trustee rather than John Wardy as his executor. He would not have had the conversation he did have with Mr Munro had he destroyed his 1992 will as Anthony Wardy described.
30Mr Peter McGivern was Edmond Wardy's accountant. He swore an affidavit on 20 October 2011. For health reasons he was unable to attend court to be cross-examined. His affidavit was read without objection, but in assessing its weight, I take into account the fact that the parties could not cross-examine him. He was present at the meeting on 29 June 2007 with Mr Munro and Edmond Wardy. John Wardy was also present. Mr McGivern corroborated Mr Munro's evidence that at the meeting on 29 June 2007 Mr Wardy referred to his existing will. At that meeting, there was a discussion about the establishment of a superannuation fund and the fund was established. Mr McGivern deposed that he told Edmond Wardy that he would need to revise his will to ensure that it adequately dealt with the new structure that had been put in place. He deposed that Mr Wardy said "Yes, I have a will. I know all about that." Mr McGivern said, "You should consider appointing someone other than the Public Trustee as executor", and Mr Wardy said, "I spoke with a solicitor before about making a change to my will. I want to make some changes and I don't want the Public Trustee to be the executor." I accept that as further corroboration of Mr Munro's evidence that the deceased spoke of his existing will in June 2007.
31As referred to earlier in these reasons, John Wardy gave evidence of having actually seen the 1992 will in the buffet as late as May 2009. I accept that evidence.
32William Wardy gave evidence on which he was not cross-examined that in about late June or early July 2009, he had a conversation with his father when his father was in hospital. Edmond Wardy was admitted to hospital for the last time in early June 2009 and remained there until his death on 19 July 2009. William Wardy deposed that in about late June or early July 2009, he asked his father, "Have you fixed everything up so that we don't have any trouble?". Edmond Wardy replied, "John will let you know about everything. I've filled everyone's cup up to what they deserve."
33I accept that evidence. The clear inference is the deceased was asserting that he had left a will under which each family member would receive what, in his opinion, he or she deserved.
34For these reasons, I do not accept the evidence of Anthony Wardy that the deceased destroyed his will in March 2006.
35There remains a presumption that the deceased destroyed his will with the intention of revoking it. That is a rebuttable presumption of fact whose strength will vary according to the circumstances. The will was kept in the buffet to which Edmond Wardy had the only key until sometime after he was admitted to hospital in June 2009. John Wardy gave evidence that on 15 July 2009 when his father was in hospital, his father said to him words to the effect that, "Hassiba has taken the key to my buffet", and the next day that he said to Hassiba when John was present words to the effect, "I know you've got my keys. Bring them back to me. Don't touch my money.", and that Hassiba said, "I'll bring them back tomorrow". Hassiba Wardy disputes this evidence, but admits that she obtained possession of the key to the buffet on or about 17 July 2009. She deposed that she found the key in her husband's dirty clothes which she took home to be washed. According to Hassiba Wardy, when she returned to the hospital she took the key but her husband told her to keep it until he came home. He did not ever return home. Hassiba Wardy said that she did not use the key to open the buffet until 3 August 2009 when she did so in the presence of a solicitor, Ms Forial Katrib. When the buffet was opened on that occasion, it did not contain a will.
36Unless the deceased himself destroyed the will, the only explanation for the original's not having been found after Edmond Wardy's death is that Hassiba Wardy or someone on her instructions removed it from the buffet. That is what John Wardy alleges took place. That is a serious allegation to which the principles stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 apply. The seriousness of the allegation and the gravity of the consequences flowing from such a finding are to be taken into account in deciding whether the allegation has been proved on the balance of probabilities to my reasonable satisfaction (McCann v McCann [2013] NSWSC 78 at [8]).
37William Wardy's evidence referred to at para [31] above of his conversation with his father in late June or early July strongly suggests that the deceased had not destroyed his will before he went into hospital. He had no opportunity to do so afterwards.
38Hassiba Wardy denied removing the will or allowing the will to be removed. She denied accessing the buffet before she did so in the presence of her solicitor. This was notwithstanding that according to her evidence about three or four years before her husband's death, he showed her his key to the cabinet and told her (in Arabic) words to the effect, "That is for you later after me; no-one else." She deposed that on 17 July 2009, that is, two days before her husband's death, he said to her words to the following effect:
"I've done a will with a solicitor. I've put everything in your name and after you, to our children. After I die, a solicitor will come to your home and they will give you the will. It is one page only and I don't want you to tell William, Sam or John anything about the will."
Hassiba Wardy deposed that she asked what was the name of the solicitor, but her husband said he had forgotten.
39I do not accept that any such conversation occurred. There is no other evidence that the deceased intended to disinherit his sons of his first marriage, and given the closeness of his relationship with John Wardy, who is the only relative who assisted him in the management of his numerous commercial properties, and in whom he had expressed his trust in conversations with third parties, it is inherently unlikely that the deceased would have made such a statement. Nor has any such will been forthcoming. But if the conversation occurred as Hassiba Wardy deposed, it is strange that she did not open the cabinet when no solicitor had come to the house to give her the will that she had been told had been made. According to her evidence, her husband had told her that the key was for her use and no-one else's after his death. She should not have been under any inhibition in accessing the cabinet.
40There is evidence that she did so. William Wardy and his wife Samia Wardy deposed that they were present at a meeting with Hassiba Wardy and a solicitor whose first name sounded like Flora or Fiora, whom I take it to be Florial Katrib, in which Hassiba Wardy gave a copy of the 1992 will to Ms Katrib. William Wardy deposed that Ms Katrib said that the will had to be put to the Public Trustee and Samia asked Hassiba whether she had the original of the will and Hassiba said (in Arabic), "Yes it's inside." According to William Wardy, his wife said (in Arabic), "Bring all of the papers in here", but the solicitor said, "Don't worry. We don't need it. The copy is OK." Samia said that at a meeting at the Kensington house on 20 August 2009, there was a conversation between her, Hassiba Wardy, Roger Wardy and a solicitor who was present in which Samia Wardy asked Hassiba Wardy whether she had found the original will and Hassiba Wardy responded, "Yes". According to Samia Wardy, she asked whether she could look at it, but Hassiba Wardy said, "What for? It's the same as the one you have. What do you need to look at it for?" According to Samia Wardy, she asked the solicitor whether Hassiba did not need to give the original will to the Public Trustee, but the solicitor said that the Public Trustee did not need the original and that Hassiba should keep it so that it did not get lost.
41Ms Katrib said that she did not recall Hassiba ever saying that she had found an (or the) original will. She denied saying that the Public Trustee did not need the original will. She attended for the purpose of a search being made to find the original will and indicia of title so as to give them to the Public Trustee. In the light of Ms Katrib's evidence I am not satisfied that Hassiba Wardy made the admissions to which William and Samia Wardy deposed.
42John Wardy called a family meeting for 1 August 2009 having obtained a copy of the 1992 will from Mr Cassimatis. On 31 July 2009, he provided a copy of the 1992 will to Hassiba Wardy and told her that under that will, she got the house at Milroy Avenue, a life estate in the Cleveland Street property and that her three sons would get roughly 50 per cent of the rest of the estate. Hassiba Wardy said she was bitterly disappointed and said, "Why do I only get one building? Your father had 15 buildings. This will is rubbish." Whilst Hassiba did not accept that version of events, it is clear that she did express disappointment about the provisions of the 1992 will. According to John Wardy, he told Hassiba Wardy on 31 July that she should look in the cupboard to find the original will and Hassiba Wardy said she would do so. I accept that evidence.
43At the meeting on 1 August 2009, John Wardy attempted to get the family members to agree to his appointment as executor instead of the Public Trustee. According to John Wardy, on 3 August he had a conversation with Hassiba Wardy at her house in which there was a conversation to the following effect:
"John Wardy: 'Have you found the will yet?'
Hassiba Wardy: 'Yes'
John Wardy: 'Can I see it?'
Hassiba Wardy: 'Don't worry. I've got it.'"
44Hassiba Wardy denies this conversation. However, I prefer John Wardy's evidence. I do not consider Hassiba Wardy's evidence to be reliable. This is partly because parts of it were inherently unlikely. For example it is unlikely that Hassiba Wardy would not have opened the buffet between her husband's death and 3 August 2009. It is unlikely that Edmond Wardy would have told her that he had made a new will putting everything in her name and after her, to their children. Hassiba Wardy's evidence is also contradicted by other reliable evidence which I accept as dealt with below. Also, her evidence in cross-examination was at times unresponsive, even after making allowance for the fact that some questions and answers were given through an interpreter.
45Important evidence was given by Mrs Irina Cassimatis, the wife of Peter Cassimatis who prepared the 1992 will. She assisted her husband to deal with the discontinuance of his practice from 2005 owing to his deteriorating health. On 25 July 2009, she typed a letter for John Wardy for her husband enclosing a copy of the 1992 will. A couple of days after 25 July, she telephoned Hassiba Wardy. She deposed that a conversation to the following effect took place:
"A couple of days later, I spoke to my husband. I later telephoned Hassiba. We had a conversation to the following effect:
Hassiba said: 'Where did John get the copy of my husband's Will from?'
I said: 'He telephoned my husband and we sent a letter out to him with the copy of the Will and a copy of an earlier letter my husband had sent to Edmond.'
Hassiba said: 'I don't know where the original is.'
I said: 'Have you searched to see if Edmond has put the original Will in safekeeping?'
Hassiba said: 'I had a wonderful relationship with Eddy and he told me that he had left everything to me.'
I said: 'Well, you should search any papers that your husband had and see whether you can find an original Will.'
Hassiba said: 'You know my husband and John had a big argument. He never did anything for Eddy.'"
46She deposed that some days later, there was a further telephone conversation with Hassiba to the following effect:
"Some days later, I had a further telephone conversation with Hassiba, to the following effect:
Hassiba said: 'I have searched and I can't find the original Will. I think that John stole my husband's keys and then robbed the house.'
I said: 'If that is what you think, you should go to the police and tell them what you think is missing. Is anything else missing?'
Hassiba said: 'I think he also stole my husband's money.'
I said: 'What money?'
Hassiba said: 'There was a couple of $100,000 of cash and it is now missing. I had never looked in the cabinet before Eddy died.'
I said: 'Well, I think you should go and tell the Police.'"
47Mrs Cassimatis deposed that about a week later, she telephoned Hassiba Wardy and a conversation to the following effect took place:
"... I had another telephone conversation with Hassiba. On this occasion I telephoned Hassiba. During the conversation words were said to the following effect:
I said: 'How are you getting on? Would you like to come out had have a cup of coffee away from the house?'
Hassiba said: 'We have searched everywhere and we can't find the Will. The Will was ripped up by my husband when Sammy was arrested and taken by the Police. Eddy came back and he was so angry. He pulled out the papers and ripped the Will up in front of us.'
I said: 'How long ago was that? When Sammy was arrested? You need to be truthful about what you say.'
Hassiba said: 'I should have divorced him years ago but I don't have to worry about that because if there is no Will I will get 80% and my sons will get 10%. John and his brothers can kill themselves over the other 10%.'
I said: 'I don't think your side of the family would get 90%.'
Hassiba said: 'I should have followed through with the divorce. I would have ended up with more.'
I said: 'I didn't know that you and your husband were going to get divorced. You told me before that you had a very good relationship.'
Hassiba said: 'Yes, I saw a lawyer but I changed my mind because I thought I would get 100% when my husband died.'
I said: 'Did Edmond know you wanted a divorce?'
Hassiba said: 'I don't know.'"
48Mrs Cassimatis deposed that she did not speak to Hassiba Wardy again until Hassiba Wardy telephoned her in about early March 2011. She deposed that during that conversation, Hassiba Wardy said to her words to the effect:
"My husband destroyed the will after he came back from a court case with Sam. He was very angry and did it in front of me."
49Hassiba Wardy denied the conversations, but Mrs Cassimatis was unshaken in cross-examination. She has no interest in the proceedings. No motive was suggested for her making up any of the evidence. I accept Mrs Cassimatis' evidence.
50I am satisfied that Hassiba Wardy made the allegations to Mrs Cassimatis to explain the absence of the original will. One allegation, which she repeated, was that her husband had ripped up the will in front of her or "us" when Sam was arrested by the police. That event took place in 2004. It is clear that the deceased did not tear up his will then and Hassiba Wardy gave no evidence of his having done so.
51The second allegation was that John Wardy had stolen her husband's keys and robbed the house. She showed her antipathy to John Wardy by accusing him of never having done anything for her husband and of their having had a "big argument". There was no basis for those allegations. It is clear that John Wardy did a great deal for and with his father.
52The false allegations to explain the absence of the original of the will connote a consciousness by Hassiba Wardy that she was guilty of having removed the document. She denied the conversations deposed to by Mrs Cassimatis, but I am satisfied with Mrs Cassimatis' evidence that they occurred.
53Having regard to all of these strands, I am satisfied to the requisite standard that the explanation for the absence of the original will having been found in the deceased's possessions is that it was removed by Hassiba Wardy or by someone on her direction. The presumption of revocation is rebutted.
54John Wardy did not press his claim that letters of administration be granted to him. Although the Public Trustee declined to apply for probate of the copy of the 1992 will, it did so for a reason I have rejected. There is power under s 22 of the NSW Trustee and Guardian Act 2009 to grant probate of the copy of the 1992 will to the NSW Trustee and Guardian, notwithstanding that it has not applied for the grant and has not consented to it.
55Accordingly, there will be a grant of probate of the copy will of the deceased dated 7 November 1992 to the NSW Trustee and Guardian (being the successor of the Public Trustee).