Weisbord v Rodny; Rodny v Weisbord - [2018] NSWSC 1866 - NSWSC 2017 case summary — Zoe

NSWNSWSC

Weisbord v Rodny; Rodny v Weisbord

[2018] NSWSC 1866

Supreme Court of NSW|2017-10-19|Before: Robb J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-10-19

Before

Robb J

Catchwords

Angius v Angius [2013] NSWSC 1895 The Estate of Drummond

Source

Original judgment source is linked above.

Catchwords

Angius v Angius [2013] NSWSC 1895 The Estate of Drummond

Judgment (55 paragraphs)

[1]

               Cahill v Rhodes [2002] NSWSC 561
               Payten v Perpetual Trustee Company [2005] NSWSC 345
               Clines v Johnston [2008] NSWSC 524
               Deeks v Greenwood [2011] WASC 359
               Fast v Rockman [2013] VSC 18
               Mahlo v Hehir [2011] QSC 243

Category: Principal judgment Parties: Proceedings 2016/00225246: Jeannette Weisbord (first plaintiff/cross defendant) Alexander Weisbord (second plaintiff) Joel Weisbord (third plaintiff) Laurence Rodny (first defendant/cross claimant)

[2]

Proceedings 2015/00324982: Jeannette Weisbord (plaintiff) Laurence Rodny (defendant)

[3]

[8]

The family

Mrs Rodny had two children, a daughter called Jeannette Weisbord who is aged about 66 years, and a son, Laurence Robert Rodny, who is aged about 62 years.
Jeannette is married to Abraham (Avi) Weisbord. They have had two sons and two daughters together. The sons are Joel and Alexander aged about 29 and 32 respectively. The daughters, Jordana and Karly, are not parties to the proceedings.
I will, for convenience and without meaning any disrespect, refer to members of the family other than Mrs Rodny by their first names.
The protagonists in this matter are Jeannette, Joel and Alexander, as plaintiffs and cross defendants on the one side, and Laurence as the defendant and cross claimant on the other.
The evidence establishes that each of the plaintiffs has suffered from significant medical and psychological disabilities over their lives. It is neither necessary nor appropriate for the Court to relate these personal matters in detail. It is sufficient for present purposes to describe the plaintiffs' circumstances in general terms, in-so-far as they have a bearing, in Jeannette's case, on the manner in which she gave her evidence, and as background to the manner in which Mrs Rodny cared for the plaintiffs during her lifetime.
Jeannette gave evidence that she has suffered from depression, anxiety disorder, panic disorder, hypertension, and other physical ailments. These disabilities have necessitated her requiring assistance for almost everything she does.
Jeannette claimed that from a very young age she has been physically and emotionally abused by Laurence, who bullied, belittled, teased and ridiculed her, and caused her physical injury when the pair were young. She said that Laurence's bullying had exacerbated her lack of psychological well-being.
Laurence did not contest Jeannette's claim that she suffered and continues to suffer from substantial medical and psychological disabilities. He conceded that an isolated incident occurred when he injured Jeannette when he was very young, but he challenged the generality and seriousness of Jeannette's claim that he had acted badly towards her.
Joel gave evidence that he has a number of serious medical disabilities that have prevented him from working and that he is a disabled pensioner. He explained the nature of his disabilities in detail, which he has suffered for most of his life. He has found it difficult to get a job, as he cannot stand or sit for prolonged periods of time and suffers mood swings due to his other medical problems.
Alex gave evidence that he suffers from a number of specific ailments and that he also experiences serious depression.
Laurence broadly accepted that Joel and Alex have suffered from significant medical and psychological disabilities.
The evidence establishes that over the course of the plaintiffs' lifetimes Mrs Rodny provided substantial, if not exceptional, emotional, material and financial support to her daughter's family out of love, and in apparent recognition of the special needs that they had.
Laurence has not put his financial circumstances in issue in these proceedings, and has not put any significant evidence in that regard before the Court. The Court is entitled to infer that Laurence is financially comfortable and may be relatively wealthy.

[9]

The estate

Through their enterprise, Mrs Rodny and her husband acquired significant assets. The value of Mrs Rodny's estate for probate purposes was stated to be $9,878,628.91. In addition, Mrs Rodny was entitled to an interest in the residuary estate of her sister-in-law, Sarolta Singer, which at 3 March 2016 had a value of approximately $541,000. As at the date of the hearing in this matter, Laurence, as Mrs Rodny's executor, valued the estate at approximately $11,116,227.
The plaintiffs initially claimed that the estate has a significantly higher value than the amount deposed to by Laurence. By the end of the hearing, the parties had substantially agreed as to the value. Their agreement was embodied in a document that became Exhibit 8. The value was $11,591,775, subject to two reservations of the plaintiffs. One of the reservations was to the effect that, instead of Mrs Rodny's shares in a company called Karod Investments Pty Ltd (Karod) being worth $1,500,000, as set out in the document, the estate was entitled to $3,000,000, on the ground that the other shares in Karod, also worth $1,500,000, and held by Laurence, were held by Laurence on trust for the estate. The second reservation was that the plaintiffs do not accept that the estate's interest in the estate of Mrs Singer is now worth $558,366, as set out in the document. The plaintiffs simply say that the interest is more valuable because Laurence has not accounted for all of the assets in Mrs Singer's estate.
It will be convenient to identify the principal properties in Mrs Rodny's estate that were the subject of specific gifts in the contending wills. As the parties have now agreed the value of the relevant properties, I will set out the values parenthetically when I refer to the properties.
Mrs Rodny owned a residential property at 77 Balfour Road, Bellevue Hill (77 Balfour Road), which was Mrs Rodny's home ($4,000,000). She also owned property at 102 Balfour Road, Bellevue Hill (102 Balfour Road), which comprises four large home units ($5,100,000). Mrs Rodny also owned shares in the company called Karod, which owns real estate at 87 Sproule Street, Lakemba, comprising eight two-bedroom flats on a single title (the value of the underlying property is $3,000,000, so the interest in the estate will either be that sum or $1,500,000, depending upon the resolution of the dispute as to the beneficial ownership of the shares in Karod).
Until September 2003, Mrs Rodny owned property at 23 Carramar Avenue, Carramar (Carramar Avenue), which consisted of nine flats on a single title, and which was earning approximately $65,000 per annum in rent as at 2002. According to Laurence, the property was sold for $1.25 million in September 2003.

[10]

The contending wills

Mrs Rodny made a will on 19 December 1997 (the 1997 will). Probate of that will was granted by this Court to Laurence, the named executor, on 15 January 2016.
In about August 2008, Mrs Rodny took steps to make a new will, and although a number of drafts in conventional will form were prepared, it is not known whether or not Mrs Rodny executed any such document, and no executed will in those terms has been found after her death. Although the validity of the documents as wills is strongly in issue, for simplicity I will refer to the final draft document as the 2008 will.
I will restrict the analysis of Mrs Rodny's wills to the gifts made of her real properties and the residuary gifts. It will generally not be necessary to consider the specific legacies or gifts made by Mrs Rodny.
Mrs Rodny made a will dated 15 May 1990. She appointed Laurence and Jeannette as her executors. She gave 77 Balfour Road to Jeannette, and 102 Balfour Road to Laurence, both free of any mortgages. She divided the residue between Jeannette and Laurence equally.
On 17 June 1997, Mrs Rodny made a further will. Again she appointed Laurence and Jeannette to be her executors. She gave 77 Balfour Road to Jeannette and 102 Balfour Road to Laurence, both free of any mortgages. She gave 87 Sproule Street, Lakemba to Laurence, free of any mortgage. This gift was based upon a misconception, as the company Karod owned this property. Mrs Rodny then gave Carramar Avenue free of any mortgage to be held on trust for such of her grandchildren as survived her. The residue was given equally to Jeannette and to Laurence.
The will that was admitted to probate was the 1997 will, made on 19 December 1997. It appointed Laurence as the sole executor. It again gave 77 Balfour Road to Jeannette and 102 Balfour Road to Laurence. The gift of 77 Balfour Road to Jeannette was made free of any mortgage, but the gift of 102 Balfour Road to Laurence was made subject to any mortgage. The shares in Karod were given to Laurence. Carramar Avenue was given to the trustee, free of any mortgage, to be held for Mrs Rodny's grandchildren, who survived her and attained the age of 25 years. Mrs Rodny gave the residue of her estate to Laurence to assist him to discharge the mortgage over 102 Balfour Road, and taking into account that the property may be subject to a CGT liability that was to be borne by Laurence.
All of these wills were prepared on behalf of Mrs Rodny by Mr Norbert Lipton, a solicitor.
The draft will that was prepared for Mrs Rodny by Mr John Lloyd, a solicitor, on 15 August 2008 (in its final form), and which I have called for convenience the 2008 will, relevantly provided as follows: 1. I REVOKE all previous wills and testamentary dispositions. … 3. I APPOINT JEANNETTE WEISBORD…and LAURENCE ROBERT RODNEY (sic)… as executor and executrix and trustees… 4. I GIVE to my Grandchildren ALEXANDER BENJAMIN WEISBORD, JOEL ADAM WEISBORD, KARLY JUDITH WEISBORD and JORDANA TAMMY WEISBORD my property known as 102 Balfour Road, Rose Bay NSW…free of all duties and taxes, in equal shares as tenants-in-common when they shall each attain the age of Eighteen (18) years… 5. I GIVE to my Daughter JEANNETTE WEISBORD…all my right title and interest in my property at 77 Balfour Road, Rose Bay NSW…free of all duties and taxes PROVIDED THAT if she should predecease me I GIVE the said property at 77 Balfour Road, Rose Bay to my said daughter's children… 6. I GIVE all my right title and interest in all my shares in Karold (sic) Investments Pty Ltd to LAURENCE ROBERT RODNEY free of all duties and taxes. 7. I GIVE all the balance of my estate remaining after the gifts referred to in Clauses 4, 5 and 6 of this my Will to my Trustees… (b) to give the balance remaining on the following trusts: (i) To my children JEANNETTE WEISBORD and LAURENCE ROBERT RODNY as tenants-in-common equally…
The information in the preceding paragraph oversimplifies matters, as Mr Lloyd initially prepared a draft will that was pre-dated 15 August 2008, but omitted the term in clause 6 of the extract set out above. He then prepared a draft of the will that inserted the substance of clause 6 in handwriting. Finally, an engrossed version of the draft will was prepared that included clause 6, but did not include the typed date for the execution of the will.
It should be noted that clause 1 provided for the revocation of all previous wills and testamentary dispositions. That will be significant to the extent that it is necessary to deal with the probate claim by applying the principles governing lost wills.

[11]

The proceedings

There are four sets of proceedings before the Court. In one, No 225246 of 2016 (the probate claim), Jeannette, Joel and Alexander, as plaintiffs, seek a declaration under s 8 of the Succession Act 2006 (NSW) (the Succession Act) that what I have called the 2008 will constitutes the last will and testament of Mrs Rodny. I will explain this claim more fully below. They seek an order that letters of administration with the 2008 will annexed be granted to the plaintiffs. They seek an order revoking the probate granted to Laurence of the 1997 will.
The probate claim was commenced by statement of claim filed on 26 July 2016. An amended statement of claim was filed on 22 August 2016 to join Joel and Alexander as plaintiffs, but otherwise it contained the same allegations as the statement of claim.
Laurence, by his defence filed in response to the original statement of claim, effectively denies the claims made by the plaintiffs.
Further, by cross claim filed on 11 August 2016, Laurence seeks an order for the grant to him of probate in solemn form of the 1997 will.
In the three other proceedings, Jeannette (No 324982 of 2015), Joel (No 324966 of 2015), and Alexander (No 324977 of 2015) seek orders against Laurence, as executor of the estate of Mrs Rodny under the 1997 will, for further provision under s 59 of the Succession Act.
As the three claims for family provision relief were made outside the 12 months from the date of the death of Mrs Rodny required by s 58(2) of the Succession Act, the plaintiffs will not be entitled to proceed with those claims unless the Court orders that they may do so on sufficient cause being shown.
Laurence opposes the plaintiffs being given leave to proceed with their claims out of time, and if they are permitted to proceed, he resists the making of any family provision orders in their favour.
It is both logically necessary and practically convenient for the Court to deal with the probate claim before it considers the three applications for family provision orders. In any event, as is made clear in par 257 of the plaintiffs' closing written submissions, the family provision claims are made in the alternative to the probate claim, so that if that claim succeeds it will not be necessary to deal with the family provision claims.
If the probate claim succeeds, the effect will be that Joel and Alex and their two sisters will inherit 102 Balfour Road, which has an agreed value of $5,100,000. Laurence will lose the benefit of the devise of that property to him contained in the 1997 will. Putting aside the effect of any costs orders that may be made in these proceedings, Joel and Alex will become entitled to property worth approximately $1,250,000 each. Jeannette will benefit in that she will share equally with Laurence in the residue.

[13]

The plaintiffs' pleaded claim

It is necessary to note aspects of the relief sought by the plaintiffs and the allegations that they have made in the amended statement of claim to support their entitlement to the relief sought.
Prayer 1 is a claim for a declaration "that the undated and unsworn Will prepared by Mr John Lloyd, Solicitor, in or about 2008, constitutes the last will and testament of the deceased". The prayer does not identify the specific document claimed to be Mrs Rodny's will.
The plaintiffs plead the "unsigned will prepared in August 2008" in par 4(d) of the amended statement of claim, again without identifying the particular document referred to.
In par 10 the plaintiffs allege that Mrs Rodny attended the offices of Mr Lloyd in early August 2008 "and gave instructions for the preparation of the Unsigned 2008 Will".
The plaintiffs plead in par 12: 12. Immediately after attending the offices of Mr Lloyd, the deceased informed the First Plaintiff's husband, Abraham Weisbord, that she had deliberately gone to another solicitor, Mr Lloyd, and changed her will and requested that Abraham not tell the Defendant.
Then, in par 13, the plaintiffs allege that Mr Lloyd forwarded the 2008 will to Mrs Rodny's home address under cover of a letter dated 15 August 2008, but Mrs Rodny was admitted to hospital from 19 to 22 August 2008 and again on 26 August 2008. They allege in par 14 that Mrs Rodny became weak and unwell and her health and mobility were greatly affected "preventing her from executing the Unsigned 2008 Will". They then make a number of allegations concerning Mrs Rodny's poor health, and further in par 15 plead that Laurence "was controlling the deceased's finances and collecting and perusing all her mail". They end in par 19 by alleging: "In the premises, the deceased was prevented from executing the Unsigned 2008 Will".
The claim as pleaded by the plaintiffs was therefore in essence that Mrs Rodny instructed Mr Lloyd to prepare the 2008 will with the intention that it expressed her final testamentary intentions, but without changing those intentions she was prevented from formally executing the will because of practical restrictions caused by her declining health and Laurence's control of her finances and the collection and reading of her mail.
A significant issue in this case is whether, if a number of identical versions of a document which the deceased person may have intended to operate as his or her will are shown to have existed, and the evidence does not establish the specific document that was the subject of the deceased's intention, that circumstance precludes the operation of s 8 of the Succession Act. For the present it must be noted that it follows from the wording of par 13 of the amended statement of claim that the document identified by the plaintiffs is the document "forwarded… to the deceased's home address under cover of (sic) letter dated 15 August 2008".
It will be seen in due course that the way that the plaintiffs put their case changed in response to evidence of the contents of Mr Lloyd's file and the other relevant records in his office, and the evidence given by Mr Lloyd when he was called to give evidence by the plaintiffs on subpoena. That evidence unexpectedly supported a conclusion that, contrary to appearances, the draft of the 2008 will was not posted to Mrs Rodny, and consequently a doubt was created concerning the identity of any document that Mrs Rodny intended to operate as her will. Other information, which I will consider below, came to light which changed the basis upon which the parties fought the probate claim.

[14]

Mr Lloyd's evidence

It will be convenient in this case to begin by considering the effect of the evidence given by Mr Lloyd, as the solicitor who prepared the 2008 will, and the records he produced, as the resolution of the dispute hinges to a substantial extent on the findings of fact that the Court will make based upon that evidence.
Ordinarily, one would expect that, if a person in Mrs Rodny's position visited a solicitor with the intention to make a new will, then an examination of the solicitor's file, augmented if necessary by evidence from the solicitor, would clearly demonstrate what had occurred in relation to the implementation of the person's instructions, whether a new will had been made, and if not, why it had not been made.
It is unfortunate in the present case that an examination of Mr Lloyd's file, and indeed the evidence given by Mr Lloyd, does not resolve these questions, and in a number of ways inhibits the fact-finding process in which the Court is required to engage. A number of deep uncertainties arise out of this part of the evidence.
Because of the crucial importance of this part of these reasons for judgment to ensuring that the true testamentary intentions of Mrs Rodny are identified, respected and implemented, I propose to follow an unusually mechanical course in the way that I analyse the evidence. That is because the documentary evidence is incomplete and in important ways even mystifying. Nonetheless, it has the benefit of being objective evidence not dependent upon the recollection of any witness. An analysis of the documentary evidence will therefore provide the best framework available for the purpose of analysing the testimonial evidence.
I will then separately consider the oral evidence given by Mr Lloyd. Mr Lloyd was called on subpoena by the plaintiffs to give evidence in their case. He had declined to cooperate with the plaintiffs and to make an affidavit in respect of his evidence. That was because the plaintiffs were not prepared to enter into a deed of release in his favour in the terms required by Mr Lloyd, whereby they would have released whatever rights they had against Mr Lloyd arising out of any conduct on his part in relation to the making of the 2008 will, and indemnified him against claims made by third parties.
Notwithstanding my general approach of separating the sequential consideration of the documents produced by Mr Lloyd and his oral evidence, it will assist in an understanding of the documents if I interpolate relevant, uncontroversial explanations given by Mr Lloyd concerning the significance of some of the documents.
I note at this point that the transcript for the hearing from 9 October 2017 to 19 October 2017 and the transcript for the hearing from 9 April 2018 to 12 April 2018 each begin at page one. I will refer to transcript references in the 2017 hearing as "T-A" and the 2018 hearing as "T-B".

[15]

Production of additional documents by Mr Lloyd

Mr Lloyd gave evidence on two separate days, being 9 October 2017 and 19 October 2017. Mr Lloyd produced some documents on subpoena, and on the first occasion he was questioned about those documents. At the end of Mr Lloyd's evidence, I was not satisfied that the Court had received sufficient assistance from that evidence to permit it to resolve the probate claim.
I encouraged the parties to cooperate in the preparation of a list of documents that the Court would ask Mr Lloyd and his firm to produce, to ensure that all available, relevant documents were put before the Court. I also decided that Mr Lloyd should be recalled to give further evidence, after he had been given the opportunity to respond to the Court's request that he produce additional documents to the Court. Mr Lloyd cooperated in this process.
The list of documents to be produced by Mr Lloyd and his firm, John Lloyd & Co, which I settled, and which was dated 12 October 2017, is set out below. In a letter to the Court dated 18 October 2017, Mr Lloyd explained his response to each of the categories in the list of documents. The documents produced were numbered to correspond with the number of the relevant category. It will assist in understanding Mr Lloyd's response to the list of documents if I interpolate after the description of each category Mr Lloyd's response (which will be set out in square brackets): 1. Complete Lloyd and John Lloyd & Co (Diary) from 1 August 2008 to 30 September 2009 including times of appointments. [Produced: diary of John Lloyd and John Lloyd & Co diary from 1 August 2008 to 30 September 2009]. 2. Records identifying the person(s) who entered the appointments for Rose Rodny in the Diary. [Response: no such records exist or have existed]. 3. Records recording the time spent by Mr Lloyd on any matter for Rose Rodny. [Response: no such records exist]. 4. Records demonstrating when File No 280155 VP was (a) opened; and (b) closed. [Produced: screenshot of electronic file 280155 evidencing when the file was opened and closed]. 5. Records demonstrating when File No 260288 VP was (a) opened; and (b) closed. [Produced: screenshot of electronic file 260288 evidencing when the file was opened and closed and 'Documents for: 280155 Rodny-Will' print run]. 6. All records relating to File No 260288 VP, including but not limited to the search conducted on 21 December 2006 located in File No 280155 VP, relating to DPC 13913, being property at 102 Balfour Road, Rose Bay. [Response: the only document in file 260288 was the search conducted on 21 December 2006 the only records pertaining to file 260288 are: (a) physical file created on 21 December 2006, (b) title search 12633-82 conducted on 21 December 2006; and (c) screenshot of electronic diary of John Lloyd for the week 18-24 December 2006]. 7. Records relating to the destruction of any documents relating to File No 280155 VP and File No 260288 VP. [Response: no such records have been produced as to the best of Mr Lloyd's knowledge and no such documents have been destroyed]. 8. Original of draft or executed: (a) Appointment of Enduring Guardians (Pursuant to Section 6 of the Guardianship Act 1987 New South Wales) dated 15 August 2008 and signed by Rose Rodny, a copy of which was included in File No 280155 VP, produced to the Supreme Court (Enduring Guardian); [Response: otherwise than as produced, no other draft or executed appointment of enduring Guardian was held or retained by John Lloyd & Co]. (b) Power of Attorney referred to as "P.A." In the file Mr Lloyd, produced to the Supreme Court (PA). [Response: contained in the electronic file of 280155 is a copy of a General Power of attorney for Mrs Rose Rodny]. 9. Records or register recording original documents retained on behalf of Rose Rodny including but not limited to the Enduring Guardian and PA. [Response: not produced, a copy of the document register for clients with last names beginning with R produced herewith. No files have been held at any time (see document register)]. 10. Records or register evidencing the posting of the letter dated 15 August 2008 addressed to Mrs R Rodny. [Response: no such record evidencing the posting of letter 15 August 2008 exists]. 11. Records of any steps taken by Mr Lloyd to complete clause 11 of the draft will of Rose Rodny enclosed with the letter dated 15 August 2008 including without limitation any communication between Mr Lloyd and Mr Peter Rona. [Response: no such records exist]. 12. Invoices for work undertaken in relation to File No 280155 VP and File No 260288 VP. [Response: no invoice produced as no invoices were ever raised. There were no items or sums written off. Screenshots of Leap Accounting for matters 260288 and 280155 produced]. 13. Records of any payments received from or on behalf of Rose Rodny, including for File No 280155 VP and File No 260288 VP. [Response: no such records exist or have existed. There have been no payments received from or on behalf of Rose Rodny]. 14. Records indicating any write-offs for legal services and disbursements, including but not limited to real property searches, undertaken in File No 280155 VP and File No 260288 VP. [Response: there were no write-offs made on either file. No Invoice was raised in either matter 260288 or 280155 capable of being written off].
Mr Lloyd produced documents in response to the list without requiring a further subpoena. The packet of documents containing Mr Lloyd's response was admitted into evidence as Exhibit J. (I should record that, as the parties caused various of the documents to be marked for identification, and also documents to be separately tendered, it is not clear to me that the integrity of the documents that were originally contained in the packet has been maintained).
Mr Lloyd swore an affidavit dated 18 October 2016, which explained his response to the list of documents. The affidavit was included in Exhibit J, and was separately admitted into evidence as Exhibit 3.
Mr Lloyd explained his response to the list of documents in the following terms: 8. I refer to the letter dated 18 October 2017 containing my response to the 'LLOYD LIST OF DOCUMENTS TO BE PRODUCED BY JOHN LLOYD/JOHN LLOYD & CO' and to the documents produced. The contents comprising the said response are true and correct to the best of my knowledge, information and belief. The document comprising WILL_OF_ROSE_RODNY_… 14/08/08 ("the entry") in the file 280155 is a printout of an electronic record, the only other electronic documents are those produced being; (a) General Power of Attorney, (b) Letter to Client, (c) Appointment of Enduring Guardians, and (d) File Cover Sheet; There are no other electronic records dealing with the Rodny matter 280155 other than privileged materials subsequent to Mr Kramer's initial approach to me about the matter on 3 November 2015.

[17]

Mr Lloyd's electronic file

Mr Lloyd's response to category 5 of the list of documents is of particular importance. File 260288 was the file number for the work done by Mr Lloyd in 2008 in relation to the preparation of a will for Mrs Rodny. The document produced included a printout that contains the following information: Documents For: 280155 Rodny - Will - One person - Weisbord Completion/Settlement Date to End of Matter 17/09/10 General Power of Attorney 2 Clients appointed each other 04/09/08 VJP Letter to Client 15/08/08 VJP Appointment of Enduring Guardians 15/08/08 VJP WILL_OF_ROSE_RODNY_ 14/08/08 JLC File Cover Sheet 13/08/08 VJP Instruction Date to Completion/Settlement Date 13/08/08
The printout appears to show when the file was opened (13 August 2008) and closed (17 September 2010). It would be natural to infer that the documents that were specifically described in the printout were first created on the dates listed. It would also be natural to infer that when initials were posted beside a particular document, they were the initials of the person primarily responsible for the document. I will return to the issue of the significance of the initials below, as it is necessary to have regard to the evidence given by Mr Lloyd.
It is intriguing to note that the name "Weisbord" was included in the description of the file name. I would infer that was done when the file was opened and the initial entry was made in the electronic file. No explanation was given for the inclusion of the reference to "Weisbord", which must in the circumstances be a reference to Jeannette. The source was probably information provided by Mrs Rodny to Mr Lloyd. Mrs Rodny may have intended some special role for Jeannette. What that may have been cannot be known.
Mr Lloyd confirmed in his evidence that these inferences concerning the significance of the entries in the electronic file are correct: see in particular T-A 429. He identified the initials JLC as being a reference to himself, and VJP as being a reference to his secretary, Ms Virginia Portingale (T-A 424.36-428.40). Mr Lloyd said he could not be "100% sure" that the placing of a person's initials beside a document meant that person was the author of the document, as it could mean that a different person created the document using a computer in the office to which the particular initials were attached (T-A 428.25).
The entries in the electronic file, together with Mr Lloyd's evidence explaining the electronic file, support a conclusion that on 13 August 2008 an appointment was made for Mrs Rodny to see Mr Lloyd the following day, 14 August 2008, for the purpose of giving instructions for the preparation of a will. Enough information was provided at the time the appointment was made to enable Mr Lloyd or his staff to open the file on 13 August 2008. The file cover sheet was probably prepared by Mr Lloyd's secretary. A draft will was prepared for Mrs Rodny on 14 August 2008. That draft was prepared by Mr Lloyd. An appointment of enduring guardians was prepared on 15 August 2008. A letter to Mrs Rodny was written on 15 August 2008. Finally, a general power of attorney was prepared on 4 September 2008.

[19]

Mr Lloyd's file note

Exhibit D, which contains documents extracted from the file, includes a two page file note that one would assume was written primarily by Mr Lloyd, as it contains instructions relevant to the drawing of the new will.
No date is written on the file note.
The document is headed with Mrs Rodny's name and address. The writing is in black ink. Next to that, in blue ink, is Mrs Rodny's telephone number.
Under that, in black ink, there is a list of the full names of Mrs Rodny's children and grandchildren, together with addresses in the case of Laurence and Jeannette. Work and mobile phone numbers are given for Jeannette but not Laurence. Again, Jeannette is given prominence over Laurence.
The ages of the four Weisbord children are set out beside their names, and what appear to be incomplete dates of birth for the two daughters.
The name "PETER RONA" is then written, and next to that on the left there is an arrow pointing to the right.
Then, there is an entry "Re title details" and a reference to units, "77 Balfour Rose", "102 Balfour Rd owned by Rose Rodney (sic)", and 287 Sproule St Lakemba Karod Investments P/L - 8 units".
Under the list of Mr Rona's name and the references to the various properties there is an entry which appears to read "- After" and an arrow to the right followed by "[xxxxxxxx] (11-1 pm)". It would be at least reasonable to suppose that the purpose of this aspect of the file note was to record the need to telephone Mr Rona for some purpose connected with the properties that had been listed.
There is then an entry "P.A." to the left of the reference to the Lakemba address, in black handwriting that appears to be Mr Lloyd's. To the left of and immediately below that entry, written in dark blue ink, the following appears: Son - Daughter JOINT - only operates when no capacity
Written to the left of the entry "JOINT" is the word "JUST", but a lighter blue pen was used to make that entry.
In evidence, Mr Lloyd said that the intent of using the word "just" was to record Mrs Rodny's instructions that the power of attorney was to be just joint, and not joint and several (T-A 47.20).
At the bottom of the first page of the file note, written in a different blue pen, and evidently different handwriting, are references to the 102 and 77 Balfour Road properties as well as their certificate of title references.
Mr Lloyd said in evidence that the black and dark blue handwriting was his own, and the light blue was the handwriting of his secretary (T-A 20.25).
The second page of the file note contains only the names of the grandchildren, written in black ink, followed by the word "Grandchildren".
It is notable that the file note does not appear to contain a note of any instructions given by Mrs Rodny as to what the terms of her new will should be.
Mr Lloyd acknowledged in his evidence that he did not make a file note of Mrs Rodny's instructions concerning the contents of her new will. He initially said that he had made relevant notes of her instructions on the copy of the 1997 will that Mrs Rodny gave him. He ultimately acknowledged that those notes were incomplete, and he effectively prepared the new draft will from memory (T-A 425.33).

[21]

Mr Lloyd's electronic diary

A printout of Mr Lloyd's electronic diary for the period 11 to 17 August 2008 (Exhibit A) shows an appointment for Mrs Rodny at about 5 PM on Friday, 15 August 2008. Apparently because the entry for the appointment overlaps another entry in the diary, the wording of the appointment concerning Mrs Rodny appears to be truncated. There is no entry for a conference between Mr Lloyd and Mrs Rodny on 14 August 2008.
Mr Lloyd said in his evidence that his electronic diary was inexplicably incorrect in so far as it suggested that his meeting with Mrs Rodny was made for 5 PM. He said that to his recollection, the conference with Mrs Rodny was after lunch, although it may have been before (T-A 449.29). This aspect of Mr Lloyd's evidence appears to be correct, as the electronic diary shows many other appointments that are not relevant to these proceedings as having been fixed during the middle of the night. The times for the entries in Mr Lloyd's electronic diary are incorrect for some unknown reason.
The diary entry that overlaps the entry for the appointment with Mrs Rodny states: "ring Peter Rona". That gentleman was Mrs Rodny's accountant. As will be seen, Mr Lloyd needed to ring Mr Rona in order to obtain information to complete clause 11 of the final draft of the will that was prepared for Mrs Rodny. There is no evidence that Mr Lloyd did ring Mr Rona. The significance of this entry for present purposes is that the entry relating to contacting Mr Rona must have been made before Mrs Rodny actually saw Mr Lloyd on 15 August 2018. It is a reasonable supposition that the two entries were made at the same time, with the intent that Mr Lloyd would ring Mr Rona shortly before Mrs Rodny arrived on 15 August 2008 for her meeting with him. Relevantly, Mr Lloyd must have had some discussion with Mrs Rodny before he met her on 15 August 2018 that was sufficiently detailed to get to the point where Mr Lloyd understood that he should ring Mrs Rodny's accountant for some purpose connected with the making of her will.
If, as strongly appears to be the case, Mr Lloyd saw Mrs Rodny on 14 August 2008 as well as 15 August 2008, the fact that the electronic diary does not record the former conference means that the diary is unreliable as a complete record of appointments for Mr Lloyd to see Mrs Rodny.

[22]

Mrs Rodny's draft will

The file contains a draft will of Mrs Rodny. The word "DRAFT" is stamped on the document in red. It is already dated in the sense that the words: "Dated: 15th August 2008" are typed on the first page. The same date is typed on the third page next to the space provided for Mrs Rodny's signature.
The names of the two witnesses have also been typed into the document. One witness was Mr Lloyd. The other was Vanessa Lopez Souza, whose occupation is described as "law clerk", and whose address is the same as that of Mr Lloyd.
The wording of the draft will is in the same terms as the August 2008 will proposed by the plaintiffs in this case, except that clause 6 dealing with the gift of the shares in Karod to Laurence has been omitted.
The draft will has been amended in dark blue handwriting (that looks like the same pen as was used to make the entry on the first page of the file note concerning the power of attorney), to add: 6. Give all the right title and interest in all my shares in Karod Investments Pty Ltd to LAURENCE ROBERT RODNEY (sic)".
Furthermore, the typed clause 10 provides: 10. My Trustees must pay any capital gains tax for which my estate is liable or becomes liable as follows:
Clause 10 therefore appears to be incomplete, in the sense that it appears that something was intended to be added concerning the payment of capital gains tax. That said the incomplete clause 10 seems clearly enough to require the Trustees to pay the capital gains tax. (Note that clause 10 in this draft became clause 11 in the final draft when Mr Lloyd inserted clause 6 which he had omitted).
It is to be noted that on the draft will there is a vertical line beside and a horizontal line under clause 10, which appears to have been written in black ink.
If, as appears to be the case, the entry in the electronic file dealing with when documents were first prepared means that the draft will was prepared on 14 August 2008, it must follow that Mr Lloyd received instructions for the will from Mrs Rodny on or before that date. Also, the fact that the date of execution and the names of the witnesses were typed into the draft at the beginning suggests that there was an arrangement between Mr Lloyd and Mrs Rodny for her to attend upon him on 15 August 2008 in order to sign the will.
It seems likely that the effect of clause 10 not being completed (having regard to what was written in the hand-written file note) was that Mr Lloyd needed to talk to Mr Rona in order to find out some information needed for the purpose of completing the clause.
The existence of the hand-written addition of the new clause 6 would suggest that either a gift that Mrs Rodny instructed Mr Lloyd to include in her will had been omitted by him when he prepared the draft, or alternatively when Mrs Rodny reviewed the draft she decided to revise it to add an additional gift. (It will be remembered that Mr Lloyd did not make any note in his file note of Mrs Rodny's instructions concerning the terms she intended to include in her new will, which may have caused Mr Lloyd to forget his instructions and fail to include the term that became clause 6 in the draft of the will that was evidently intended to be executed on 15 August 2008).

[24]

Letter dated 15 August 2008

Mr Lloyd's file contained what appears to be a copy of a letter addressed to Mrs Rodny, dated 15 August 2008, on the subject: "YOUR WILL" (part of Exhibit D). (As this letter appears above the entry for the appointment of enduring guardians in the electronic file, it is to be inferred that it was prepared after that document).
The letter states: We enclose herewith draft Will which we have prepared pursuant to instructions received from you. Please peruse the Will and advise whether the contents meet with your approval.
The document bears a stamp in red: "FILE COPY". It does not have any reference to a file number, or indication of who the actual writer was. However, as Mr Lloyd's secretary's initials appear beside the reference to "Letter to Client" in Mr Lloyd's electronic file, that would suggest that the secretary prepared the letter.
In relation to the absence of any reference to a file number on the letter, Mr Lloyd said in evidence that it was his secretary's invariable practice to insert a file reference on correspondence. He suggested that the absence of a file reference on the letter may mean that it was produced by Ms Souza (T-A 431.35). This evidence introduces doubt about which of Mr Lloyd's employees was involved in preparing the 15 August 2008 letter to Mrs Rodny, and which of those employees was responsible for sending the letter to her.
It is significant that, if this letter was sent to and received by Mrs Rodny, it has apparently not been found. If Mrs Rodny received the letter she did not put it and the draft will in the special place where she kept her personal documents, and where the envelope that originally contained the letter from Mr Lipton and the copy of the 1997 will was found. In this event, Mrs Rodny would have kept an empty envelope that recorded her initial appointment with Mr Lloyd, but not the correspondence she received from him. It is also possible that the letter and its contents were kept by Mrs Rodny in that special place where she kept her personal documents, but were removed at some time. Furthermore, apart from the unexplained circumstances in which an appointment was placed in Mr Lloyd's electronic diary for him to see Mrs Rodny on 3 September 2008, there is no evidence of Mrs Rodny responding in any way to the receipt of the letter.

[30]

Mr Lloyd's oral evidence

I will now move to address the oral evidence that Mr Lloyd gave concerning his involvement with Mrs Rodny in about August 2008. Mr Lloyd said that he had reviewed his file before coming to give evidence (T-A 18.18).
Mr Lloyd said that, when he saw Mrs Rodny, her instructions were clear (27.18). He was satisfied that Mrs Rodny had capacity to make a will (T-A 50.35).
Mr Lloyd said that he saw Mrs Rodny with Mrs Parker, who was a close friend. It appeared to him that Mrs Parker already knew what Mrs Rodny's instructions to him would be. Mrs Parker did not interfere in the giving of the instructions. Mrs Rodny said to Mr Lloyd that she wanted Mrs Parker to remain present. Mr Lloyd said that he prepared his written file note on the day that he saw Mrs Rodny (T-A 18.37).
Mr Lloyd gave evidence that Mrs Rodny said to him: "I want to change my will… My son's got enough and one of the properties have been sold and I want to give it to my grandchildren" (T-A 19.5). Mr Lloyd repeated his evidence that Mrs Rodny told him that Laurence already had enough (T-A 34.16, 439.15). He also repeated his evidence that Mrs Rodny instructed him that she wanted to substitute another property by way of gift to her grandchildren for the property given to them by the earlier will that had been sold (T-A 29.12, 439.23). Mr Lloyd also said that Mrs Rodny told him that she did not want Mr Lipton to know about the new will, and Mr Lloyd accepted the suggestion of counsel that this instruction was probably because of the association between Mr Lipton and Laurence, so Mrs Rodny probably did not want the information to come to the attention of Laurence (T-A 45.20).
I find this aspect of Mr Lloyd's evidence to be a genuine recollection. As Mr Lloyd had not previously cooperated with the plaintiffs, he did not have any opportunity at all to learn anything about the issues in this case. Mr Lloyd could not have learned of this information, which fits neatly into the facts of this case, in-so-far as it reflects the principal reason for Mrs Rodny to go to the trouble of making a new will, unless he had been told these matters by Mrs Rodny. This aspect of Mr Lloyd's evidence also finds some support in the terms of the draft will that Mr Lloyd prepared for Mrs Rodny.
Mr Lloyd gave evidence, however, that he saw Mrs Rodny on 15 August 2008 and not 14 August 2008 (T-A 21.5, 22.26, 39.45). He responded affirmatively to the effect that he was "adamant" (T-A 36.2) and "unequivocal" (T-A 52.50) that he only saw Mrs Rodny once, on 15 August 2008.
Mr Lloyd said that he did not give the draft will to Mrs Rodny to read (T-A 31.30). Mr Lloyd said that after the will had been prepared on 15 August 2008 (T-A 31.45), after he had received Mrs Rodny's instructions, he noticed that the intended gift of the shares in Karod to Laurence was missing, and that caused him to make the hand written-addition to the first draft of the will (T-A 32.21). Mr Lloyd denied that Mrs Rodny did not sign the will on 15 August 2008 because she became aware of the error upon reading the draft (T-A 46.29). Mr Lloyd's version of what happened was that, after he had taken instructions, he said to Mrs Rodny that he would send a copy of the will to her, and Mrs Rodny and Mrs Parker then left (T-A 23.10).
Mr Lloyd denied that the date 15 August 2008 was typed into the draft will when it was first prepared because that was consistent with an intention that Mrs Rodny would sign the will on that date (T-A 32.10).
Mr Lloyd said that he did not speak to Mrs Rodny after 15 August 2008 (T-A 42.26).
All of that oral evidence was given by Mr Lloyd on 9 October 2017, before he produced the additional documents in response to the list settled by the Court, and considered above.
The information in what I have called the electronic file, which recorded when particular documents were prepared, is inconsistent with Mr Lloyd's recollection in various important ways.
The 2008 file was prepared on 13 August 2008 (and Mr Lloyd confirmed that he would not have caused a new file to be opened at the time when a client made a telephone appointment to see him (T-A 43.5)). As Mr Lloyd must have received Mrs Rodny's instructions before he prepared the first draft will, and as the draft was prepared on 14 August 2008, Mr Lloyd must have seen Mrs Rodny on or before that date. Mr Lloyd conceded that his electronic diary must be incomplete in relation to his attendances upon Mrs Rodny (T-A 435.43).
Mr Lloyd's realisation that his recollection of his attendances upon Mrs Rodny must have been seriously in error, caused him to add the following paragraphs to his 18 October 2017 affidavit, which has been considered in part above: 9. I had no recollection of the entry of the Will generated 14/08/2008 at the time of giving my evidence on Monday 9 October 2017 and my recollection of meeting with Mrs Rodny was aided by the physical draft Will which had the date 15 August 2008… 10. Until conducting the further search of files 260288 and 280155 in the Rodny matters on 16 October 2017 I had, and still have, no independent recollection of the date or dates upon which I conferred with Mrs Rodny, but believed that such attendance by Mrs Rodny in relation to her Power of Attorney and Will in 2008 occurred on 15 August 2008 by reason of the draft Will containing that date.
The position therefore is that Mr Lloyd is a witness who gave unequivocal evidence that his client, Mrs Rodny, conferred with him once on 15 August 2008. Far from that evidence being given from a genuine memory, it was reconstructed from the date on the draft will. Mr Lloyd said that he had reviewed his file before he gave evidence, but he did not ensure that he had recovered all of his relevant files and records before he gave evidence. Mr Lloyd's electronic diary was on his own admission unreliable. He kept a correspondence register, but the register was also unreliable (he said) to the extent that it did not record the sending out of the crucial 15 August 2008 letter to Mrs Rodny. Mr Lloyd had no recollection of the circumstances in which an appointment was made for Mrs Rodny to see him on 3 September 2008. He could not recall, one way or another, whether he saw Mrs Rodny on that date. If he did not see Mrs Rodny, notwithstanding that she was an elderly lady who had given him instructions for her last will, he did not follow the matter up. Whether or not he saw Mrs Rodny again, he did nothing to satisfy himself that she had either executed the will properly, or changed her mind. He apparently did nothing until 17 October 2010, when the file was closed, with his instructions entirely unresolved.
It is most unfortunate for the Court to have to say so, but I have been forced to the conclusion that Mr Lloyd's oral evidence is not reliable. It is likely that some of Mr Lloyd's evidence will be true. The Court has no objective basis, however, from sorting the true from the false. When Mr Lloyd says vehemently that he only saw Mrs Rodny once, that he noticed the omission of what became clause 6, that Mrs Rodny did not read the will, that Mrs Rodny and Mrs Parker left his office following his advice that he would send her a draft will for her perusal, and that he did not see Mrs Rodny again, the Court cannot place any significant weight on that evidence.
The Court should treat with suspicion judgments made on the basis of the Court's perception of the way a witness has given evidence, where the perception is not of overt characteristics of the witness, such as demeanour, physical appearance, and the timing and responsiveness of the answers given to questions. Mr Lloyd gave his evidence reasonably directly and forthrightly. However, it strongly appeared to me that to Mr Lloyd it was a complete mystery as to why his own file and records were so much at odds with the relatively rudimentary but firm recollections he claimed to have about what happened. It was as if Mr Lloyd was giving evidence about events in which he did not actually participate. The Court cannot but wonder whether the explanation is that Mr Lloyd's secretary, or his law clerk, Ms Sousa, had dealings with Mrs Rodny that have escaped Mr Lloyd's memory.
The Court's problem is exacerbated by the existence of the file opened by Mr Lloyd on 21 December 2006, when Mrs Rodny apparently saw Mr Lloyd for the purpose of making a new will. The problem is not simply that Mr Lloyd was unable to tell the Court what happened on that occasion, but the fact that Mr Lloyd cannot remember anything about it introduces the risk that, when Mr Lloyd makes some positive assertion about the circumstances of his 2008 instructions, he is simply confusing in his mind what happened on the earlier occasion. That is of particular concern in relation to Mr Lloyd's assertion that he did not see Mrs Rodny again after 15 August 2008. It may be that Mrs Rodny did not follow up her December 2006 instructions, whatever they may have been. It is inexplicable that, if that happened the first time, Mr Lloyd allowed it to happen again.
I reject as improbable the suggestion by Mr Lloyd that all that happened on 15 August 2008 in respect of the new will was that Mr Lloyd noticed that the first draft he prepared was incomplete, and he told Mrs Rodny that he would send her a draft of the will for her consideration.
On the basis that Mrs Rodny probably attended upon Mr Lloyd on or before 14 August 2008, and apparently returned to sign the appointment of enduring guardians dated 15 August 2008, I do not accept that Mrs Rodny would have simply been content to leave Mr Lloyd's office on 15 August 2008, on a promise that he would send her the draft will for her consideration, without either Mrs Rodny noticing that the draft will was incomplete, or Mr Lloyd explaining that it was incomplete, with the necessity that it be re-engrossed. (Even that possibility does not explain why the few necessary changes were not made immediately, so that the will could be executed while Mrs Rodny was in Mr Lloyd's office on 15 August 2008).
Mr Lloyd said in his evidence about this possibility that the fact that 15 August 2008 was typed as the date of the appointment of enduring guardians, when the document was prepared, did not necessarily mean that the appointment of enduring guardians was executed on that date (T-A 443.11). I regard that evidence as being speculation by Mr Lloyd, but if it were true, the only candidate date for the later execution of the document is 3 September 2008, and if Mrs Rodny attended upon Mr Lloyd on that date for the purpose of executing the appointment of enduring guardians, it is probable that she would have executed the will on the same date, unless she had formed a positive intention not to do so. If she had formed an intention not to do so, it is probable that Mr Lloyd would have enquired as to her intentions, and been told that she no longer wanted to make a new will.
The question arises as to whether Mrs Rodny could have executed her new will on 15 August 2008.
The fact that the 15 August 2008 letter to Mrs Rodny was prepared (whether or not it was actually sent to Mrs Rodny) is objective evidence consistent with the belief on the part of the person who prepared the letter that Mrs Rodny had not executed the will on that date.
That gives rise to the further possibility that, by reason of the confused events that occurred on and about 15 August 2008, Mrs Rodny thought that she had executed her new will, even if she had not done so.
Mrs Rodny in all probability did execute the appointment of enduring guardians on 15 August 2008. If Mr Lloyd's evidence is right that Mrs Rodny did not read the draft will, that Mr Lloyd noticed the deficiency, and decided to correct the draft will and send it to Mrs Rodny for her consideration, Mrs Rodny may have been confused as to what was happening, particularly if, in fact, the 15 August 2008 letter was not sent to her, or she did not receive it.
The fact that Mrs Rodny apparently participated in making an appointment for a later conference on 3 September 2008 does not exclude the possibility that she believed she had already executed her will, because even if she executed the appointment of enduring guardians on 15 August 2008, Mr Lloyd had not yet caused that document to become effective by arranging for it to be executed by the attorneys. Nor had he yet implemented Mrs Rodny's instructions concerning the making of the ordinary power of attorney. There was therefore still work to be done, even if Mrs Rodny thought (wrongly) that she had executed her will on 15 August 2008.
That Mrs Rodny formed this understanding could only be considered on the basis of the evidence analysed to date as being a mere possibility, and a matter for speculation.
Even at the level of the Court's attempt to accurately analyse the significance of the objective evidence, Mr Lloyd's behaviour causes difficulty and confusion. While it appears that Mr Lloyd had a conference with Mrs Rodny that was not entered in his electronic diary, one would at least think that, if a positive entry was made, it was actually arranged between himself and Mrs Rodny, even if Mrs Rodny did not actually attend. If that is right, then by some process Mrs Rodny arranged to see Mr Lloyd on 3 September 2008. That was at a time that Mrs Rodny was not apparently incapacitated or in hospital. The fact that Mr Lloyd caused a company search of Karod to be made on 2 September 2008 suggests that he expected the results of that search to be relevant for some purpose on 3 September 2008. Otherwise, the coincidence is inexplicable. Then, on 4 September 2008, Mr Lloyd caused the draft power of attorney to be prepared. Why would he do that, if Mrs Rodny simply did not turn up on 3 September 2008? If she did not, that would naturally cause a solicitor in Mr Lloyd's position to doubt whether Mrs Rodny wished him to carry out her instructions, unless, of course, he contacted her following the failed conference, and she confirmed her intention to proceed. In short, unless it can be said that Mr Lloyd's practice was so disorganised as to be essentially random, the events of 2 to 4 September 2008 suggest that something at least of a positive nature happened in the implementation by Mr Lloyd of Mrs Rodny's instructions.
But by 3 September 2008, Mr Lloyd must have believed that, in the ordinary course, Mrs Rodny would have received the draft will enclosed with his 15 August 2008 letter. It is probable that if Mr Lloyd saw Mrs Rodny on 3 September 2008, or spoke to her following a failure by her to attend the conference, he would have brought up the subject of the execution of the will.
The logic of the matter justifies a conclusion that, as a matter of possibility, Mrs Rodny could have attended the 3 September 2008 conference with her copy of the draft will; it could have been executed and witnessed, a matter that would have taken very little time; and Mrs Rodny could have left Mr Lloyd's office with the executed will. The likelihood that this occurred is not weakened by any consideration that Mr Lloyd did not keep the original will, or keep a copy of it, because Mr Lloyd's record-keeping practices were not efficient.
The proposition that Mrs Rodny may have executed her new will on 3 September 2008 also cannot rise higher than being a mere possibility, as the fact of that occurring could only be considered to be a matter for speculation on the basis of the evidence that has been considered to this point.
Before I leave Mr Lloyd's evidence, completeness requires that I note that it was not only Mrs Rodny's new will that may, on the evidence, have been left in abeyance. Mr Lloyd had on his file the appointment of enduring guardians that had been executed by Mrs Rodny, but not the attorneys. It would not become effective until that had been done. Something prompted Mr Lloyd to prepare the draft general power of attorney on 4 September 2008. Somehow, it disappeared from his file. On the face of it, it also was left in abeyance.

[31]

Mrs Rodny's health

It is necessary to consider the evidence concerning the health of Mrs Rodny and her need to be hospitalised in the period after 15 August 2008. This evidence may have a bearing on how the confusion concerning what happened in respect of the implementation by Mr Lloyd of Mrs Rodny's instructions should be resolved.
A letter from Dr Augarten to Wolper Rehabilitation dated 18 August 2008 refers to recent onset of increasing pain and loss of mobility of Mrs Rodny and the need for pelvic and hip x-rays to be organised.
On 19 August 2008, Mrs Rodny was admitted into the Wolper Jewish Hospital because of acute groin pain and reduced mobility. She was discharged on 28 August 2008.
Mrs Rodny had a whole body scan on 15 September 2008, which demonstrated recent fractures of the sacrum, left pubic symphysis and sternum. There were widespread degenerative changes involving the shoulders, wrists, hips, left knee, right first metatarsophalangeal joint and spine with a marked kyphoscoliosis.
Mrs Rodny was again admitted to Wolper Jewish Hospital between 16 September 2008 and 2 October 2008.
On 26 November 2008, Mrs Rodny was admitted into St Vincent's Emergency for chest pains and discharged on the same day.
She was again admitted to St Vincent's Hospital on 10 December 2008, for a fractured left patella and remained there until 13 December 2008. She was then admitted to Wolper on 17 December 2008, and was not discharged until 12 January 2009.
During January and February 2009, Mrs Rodny had numerous visits to her medical practitioners for treatment after a fall, stents and anaemia, for inability to sleep, for anxiety, for tiredness, and possibly Heyde's syndrome.
This evidence establishes that Mrs Rodny was out of hospital between 28 August 2008 and 15 September 2008, which is relevant to the fact that there is evidence that she made an appointment to see Mr Lloyd on 3 September 2008.
There was evidence that Mrs Rodny suffered many further medical incidents after the period that I have considered above, and I have not ignored that evidence, but it does not appear to bear directly on her capacity to attend to the execution of any will prepared for her in August 2008, in the sense that Mrs Rodny's medical condition at times further removed from the time when the will was drafted is less and less likely to have been determinative of her failure to execute the will (if that is what occurred) or her making a decision to change her mind and not execute it.
It must be noted that the index to the Court Book agreed by the parties included in the list of chronological evidence as an "undisputed" fact that Mrs Rodny was diagnosed with dementia in September 2009. I do not understand that any party has sought to make a case that Mrs Rodny became incapacitated from making a new will because of the advent of her dementia. Laurence gave evidence that by mid-2009 Mrs Rodny had begun to suffer from short-term memory loss (T-B 89.10) but that she was "very lucid" right up to the end (T-B 86.46).
There was no expert medical evidence concerning the significance of Mrs Rodny's medical condition and her frequent hospitalisations, but it is reasonable for the Court to conclude from the nature and the frequency of the disabilities that Mrs Rodny suffered that they must have been seriously distracting and disabling. It is likely that they seriously diminished her mobility.
One of the confusing aspects of the evidence is that Mrs Rodny apparently made an appointment to see Mr Lloyd on 3 September 2008. Mr Lloyd thought that the appointment was not made on 15 August 2008. Although Mr Lloyd's evidence is generally not reliable, it is likely to be true in this case, because if Mrs Rodny made an appointment with Mr Lloyd on 15 August 2008 to execute her will, it is likely that the date of the appointment would have been earlier than 3 September 2008, over two weeks later. It is most unlikely that Mrs Rodny made the appointment in the period between 19 and 28 August 2008 when she was in hospital. If she made the appointment after 28 August 2008, it is likely that she thought she would be physically able to attend. I have referred above to the fact that a search of Karod was carried out on 2 September 2008, and a general power of attorney was drafted on 4 September 2008, supports the view that Mr Lloyd thought Mrs Rodny's instructions were active between 2 and 4 September 2008.
Consequently, there is a real possibility that material events occurred on 3 September 2008 concerning the execution of the 2008 will, but there is absolutely no positive evidence to support any particular finding in that regard.
On the other hand, the fact that no executed 2008 will has been found, and Mr Lloyd has no note or memory that Mrs Rodny told him that she had changed her mind about executing the 2008 will, and he thought that she had simply not responded to his 15 August 2008 letter, gives rise to the possibility that Mrs Rodny's medical disabilities did impede her execution of the 2008 will. Given the evidence that she did sign the appointment of enduring guardians on 15 August 2008, the confusion that probably surrounded the preparation of the 2008 will, the absence of evidence of a positive nature as to what Mrs Rodny was told by Mr Lloyd, and the possible fact that she did not receive the 15 August 2008 letter, it is possible that Mrs Rodny formed the belief over time that she had also executed the 2008 will when in reality she had only signed the appointment of enduring guardians.

[32]

Reading of the 1997 will and communications with Mr Lloyd

As I have said, Mrs Rodny died on 24 August 2014. A reading of her will was not conducted until 9 December 2014, when a reading took place in Mr Lipton's office. Mr Lipton conducted the reading. Jeannette and Laurence were present. Mr Lipton read the 1997 will, as that was the latest will made by Mrs Rodny that had been prepared by him and of which he had retained the original in safe keeping.
Jeannette gave evidence, at pars 303 to 307 of her 14 March 2016 affidavit, of her recollection of what happened during the reading of the 1997 will on 9 December 2014, in support of her family provision claim, and in the context of explaining the reasons for her delay in commencing her claim.
After explaining that she was told by Mr Lipton that she had been left 77 Balfour Road, and that Laurence had been given the rest of the estate, Jeannette said: "I broke down psychologically upon hearing this. I was crying hysterically and then couldn't stop sobbing".
Jeannette also gave evidence of being told by Laurence that she was unable to do anything about the 1997 will. This evidence was denied by Mr Lipton in cross-examination.
Jeannette gave evidence concerning what happened at the will reading in pars 164 and 166 of her 23 September 2016 affidavit. The evidence was given in reply to par 67(11) of Laurence's 28 July 2016 affidavit, which itself was given in response to the evidence in Jeannette's 14 March 2016 affidavit in the family provision proceedings in respect of Mrs Rodny's testamentary intentions. Laurence's evidence was to the effect that he had not seen any of Mrs Rodny's wills prior to reading Jeannette's affidavit. (In the following extract the expression "[Rejected]" is inserted in place of evidence that the Court rejected).
Jeannette said: 163. [Rejected] 164. I mentioned the 2008 will as soon as Lipton disclosed the contents of the 1997 will, saying: "What about mum's other Will? I thought mum prepared another will in 2008 when she went to see John Lloyd". [Rejected] 165. [Rejected] 166. [Rejected] During or after the reading of mum's 1997 will, when it became apparent to me that neither was going to mention or deal with the 2008 Will, and it appeared to me that the 2008 will was just going to be brushed under the carpet, I raised it, using the above words.
Mr Lipton swore an affidavit on 20 June 2016, in which he responded to relevant aspects of Jeannette's 14 March 2016 affidavit. He made specific responses to each aspect of Jeannette's evidence concerning what happened at the reading of the 1997 will. His recollection was inconsistent with much of the evidence given by Jeannette. Mr Lipton said that, when Jeannette asked him whether anything had been left to her children, he explained that Carramar Avenue had been sold so there was nothing left for the children. Mr Lipton said that he explained to Jeannette that all of Mrs Rodny's cash would be part of residue and go to Laurence. He said that there was a relatively lengthy discussion between Jeannette and Laurence concerning a proposal by her to live in 77 Balfour Road and sell her existing home and live on the proceeds of the investment of the money received and on the rent from Jeannette's property in North Bondi.
As to Jeannette's response to the reading of the will, and the conversation that took place, Mr Lipton said in par 16: "… I had the impression from Jeannette's demeanour and her statements and questions that she was surprised and mildly shocked by the fact that there was not more cash, but she gave no indication of any intention to challenge the Will or to take any other action in relation to the Estate… There certainly was not any crying on Jeannette's part". Mr Lipton annexed a file note of the conference, which recorded that it went for 1 ¼ hours. It recorded briefly what Jeannette intended to do with the property devised to her, and does not record any unusual behaviour on Jeannette's part.
Mr Lipton also gave evidence that, after the conference ended, Laurence telephoned him and asked him to write to Mr Lloyd about the possibility that there was a later will. Mr Lipton made a file note that recorded Laurence as having said: "Jeannette has already rung Lloyd who said he prepared a Will but it was never signed & Lloyd said he'd send it to her. He wants me to write to Lloyd".
In a later affidavit, sworn on 24 November 2016, Mr Lipton denied that during the course of the conference on 9 December 2014 Jeannette said anything about Mrs Rodny seeing another solicitor about another will. He said that he first heard about the possibility that there was a later will when he spoke to Laurence on 9 December 2014, sometime after the conference finished, or alternatively he learned of the possibility from speaking to his wife, who worked in his office, after the events recorded below concerning Ms Lipton's evidence.
In his cross-examination, Mr Lipton said that he did not at any time discuss the 2008 will with Laurence in Jeannette's presence (T-B 235.19). It was not put to him that Jeannette was crying and upset during the reading of the will.
Mr Lipton's wife, Elizabeth (Libby) Lipton, who acted as his personal assistant in his practice, gave evidence concerning her observations of Jeannette immediately after she left the meeting on 9 December 2014, at which Mrs Rodny's 1997 will was read. Ms Lipton was not cross-examined. Ms Lipton said that Jeannette "was not crying and she did not appear to have been crying. She did not appear to be happy or unhappy, but rather she appeared to be "flat" or impassive, that is to say, without any visible sign of any emotion at all".
Ms Lipton made a file note of a telephone call that she received from Jeannette at 1:35 PM on 9 December 2014, after the will reading. The file note said: NOTE FOR FILE 9.12.14 1:30 pm ESTATE ROSE RODNY Attending Jeannette Weisbord on telephone. She has been crying ever since she left our office. But she has just remembered that about five years ago her mother went with her friend Mrs. Parker (now deceased) to see John Lloyd, Solicitor, in Bondi Junction to make a new Will. She does not know if her mother signed the Will but the intention to change her old Will was there. She has told Laurence who said that he will look into it. LIBBY
Ms Lipton added in respect of that part of the note where she recorded: "She has been crying ever since she left our office", that Jeannette "did not appear to be crying when she spoke to me".
Ms Lipton's file note is objective evidence that Jeannette made a statement at 1:30 PM on 9 December 2014 that, about five years previously, Mrs Rodny went with Mrs Parker to see Mr Lloyd to make a new will. It can be inferred that Jeannette made that statement on the basis of something that she had been told. Whoever provided the information gave the name of Mr Lloyd. In-so-far as Jeannette's statement referred to her lack of knowledge about whether any will had been signed, that should be taken as evidence of Jeannette's understanding. The balance of her statement, concerning Mrs Rodny's intention to change her will, is capable of supporting an inference that whoever provided the information to Jeannette said something to the effect that Mrs Rodny had visited Mr Lloyd with the intention to change her will. The reference to "about five years ago" would place the visit to Mr Lloyd in about 2009. The statements attributed to Jeannette do not indicate when she received the information that she was relating.
As I have noted above, Mr Lipton's file note of his conversation with Laurence recorded that Jeannette had already called Mr Lloyd and been told that the 2008 will had not been signed and that Mr Lloyd had sent it to Mrs Rodny. If Jeannette called Ms Lipton after the conversation with Mr Lloyd, that could explain her statement that she did not know "if her mother signed the Will". This observation may be significant to the question that will be considered below, as to whether the statement that Jeannette made to Ms Lipton on 9 December 2014 is inconsistent with the evidence that she has subsequently given of being told by Mrs Rodny that Mrs Rodny made a new will when she visited Mr Lloyd.
Nothing in the evidence would support an inference that Jeannette could have learned the substance of what she disclosed to Ms Lipton from a source other than Mrs Rodny or Mrs Parker.
If Jeannette attended the will reading at Mr Lipton's office, without knowing in advance the date of the will that Mr Lipton intended to read on the basis that he believed it was the last will of Mrs Rodny, it would be natural for the reading of the 1997 will to provoke a recollection that Jeannette had been told that Mrs Rodny had visited Mr Lloyd with the intention of making a later will.
On 9 December 2014, Mr Lloyd wrote a letter in the following terms to Jeannette: Re: YOUR LATE MOTHER I refer to my discussions with you this afternoon and confirm that I had prepared a draft will for your late mother and forwarded it to her for her approval on the 15th August, 2008. Unfortunately, she did not contact me to sign the Will and accordingly, her Will that she made with Norbert Lipton dated the 11th December, 1997 is the applicable Will.
Mr Lipton wrote a letter to Mr Lloyd, at John Lloyd & Co, on 10 December 2014. The letter said: Re: Rose Rodny late of 77 Balfour Road, Rose Bay We act for Laurence Rodny, the executor of the Will dated 19 December, 1997 of the abovenamed. It has come to our attention that you may have prepared a later Will and we should be pleased if you would inform us of the position in this regard.
Mr Lloyd did not respond promptly, and was sent a reminder by Mr Lipton on 3 February 2015. On that date Mr Lloyd replied to Mr Lipton, by apologising for his delay, and then stating: We advise that the Writer had prepared a draft Will for Mrs. Rodny, forwarded it to her on the 15th August, 2008 and asked her to peruse and advise whether the contents met with her approval. She did not provide us with any further instructions.
Mr Lloyd's 9 December 2014 and 3 February 2015 letters are business records that are capable of supporting findings that Mr Lloyd prepared a draft will for Mrs Rodny, forwarded it to her on 15 August 2008 for her approval, but Mrs Rodny did not contact him to sign the will.
Ordinarily, the Court would be inclined to take Mr Lloyd's statement that Mrs Rodny did not provide him with any further instructions in response to the 15 August 2008 letter at face value, and accept it as strong evidence that the letter was sent and Mrs Rodny did not respond. However, for the reasons that I have set out above in discussing the significance of Mr Lloyd's oral evidence and the effect of the records produced by him to the Court, I am not prepared to give significant weight to the statements made by Mr Lloyd in his letters to Jeannette and Mr Lipton. While Mr Lloyd's recollection may have been better in late 2014 and early 2015 than it was when he gave evidence in 2017, I consider that there is too great a risk that Mr Lloyd has based his assertions on a review of his file, including an assumption that the 15 August 2008 letter was posted to Mrs Rodny, to make his assertions reliable.
Jeannette accepted in cross-examination that she had received a copy of the 2008 will from Mr Lloyd, and said that she thought it was in December 2014 or January 2015 (T-A 250.8).

[34]

Jeannette's evidence

Jeannette's first affidavit was affirmed on 14 March 2016. It contained the following evidence concerning the 2008 will: [127] Shortly after the property at Carramar was sold, in August 2008, Mum went with her best friend, Mrs Parker, to a different lawyer, John Lloyd, to have a new will prepared as referred to in the Schedule attached. [128] I became aware of the existence of this new will in late-2008 through Mrs Parker, who told me words to the following effect: "I have just had my will prepared by a new lawyer that speaks Hungarian because I want to make sure my grandkids are looked after. I took your mum with me to have her's updated as well." "I asked your mum if her will was current and she told me that she didn't want to go back to Lipton, because she wanted someone impartial and unknown to either you or Laurence." "When your mother went back, after John Lloyd had done his searches of the properties, she was shocked that his search revealed that Laurence had done some dealing with her property. Your mother said that she couldn't trust Laurence. He thinks he can do whatever he wants."
A significant aspect of par 127 of this affidavit is that Jeannette says that Mrs Rodny saw Mr Lloyd in August 2008, and that was shortly after the property at Carramar was sold. In fact, the Carramar property was sold in about September 2003.
In par 128, Jeannette only gives evidence of a conversation with Mrs Parker. From the tenor of the words attributed to Mrs Parker, it appears that the conversation happened after Mrs Rodny and Mrs Parker had seen Mr Lloyd.
Perhaps most significantly, Jeannette only deposed to a conversation with Mrs Parker, and did not give any evidence of any conversation in which Mrs Rodny participated. The statements attributed to Mrs Parker did not include an explicit assertion that Mrs Rodny had actually executed a new will.
It may be noted that Jeannette's 14 March 2016 affidavit was primarily directed at supporting her family provision claim, as the evidence given in pars 127 and 128 is given under the heading "Any evidence of the testamentary intentions of the deceased person", which is one of the matters made relevant by s 60(2) of the Succession Act.
In Jeannette's second affidavit made on 23 September 2016 (made in her family provision proceedings in reply to Laurence's affidavit of 28 July 2016), Jeannette gave the following evidence concerning the 2008 will: [153] Mr Parker knew my children also [rejected], mum used to take the kids with her to Mr Parker's shop. Mrs Parker considered herself like family and as the kids got older and I was working she would call me usually once a week to see how I was feeling and to ask about the kids. On one of these occasions, in 2008 when I was speaking to Mrs Parker my mothers will came up and Mrs Parker told me: "Your mum went with me to my lawyer because your mum was concerned about leaving something for your kids. We spoke about it and she wants to make sure, like I did, that her grandchildren were to be taken care of. Your mum said she is concerned that Larry will work with Nory". [rejected]. [154] This was not the first time my mother's will came up, although it wasn't a regular point of discussion. [155] On one morning in August 2008, my husband received a call from mum. After the phone call Avi said words to the effect of "lets go to your mother, she wants to see us, I think it's important". [156] We arrived and Mrs Parker was there with mum at the table. There was talk about mum's will but it was the first time that it really came up as something important and it put me into somewhat of a shock. I refer to my Affidavit in the Probate Proceedings where I have included this evidence. I recall that Mrs Parker called me a few days later when things had calmed down. [157] On that occasion when Mrs Parker rang me she told me: "I can't believe how upset and angry your mother was about how Larry mortgaged one of her properties, your mother didn't know until the lawyer told her after seeing on one of the searches". [158] Mrs Parker told me additionally: "I hope Laurence doesn't find out and your mum doesn't tell him how angry she is because he will come and take it out on my Shimon." Mrs Parker told me in the past, "My Shimon is not like your brother and his friend Robbie, those two are no different" (otherwise I refer to my affidavit in the Probate Proceedings.). … [161] From my understanding and conversations with mum, she went to Lloyd on multiple times. Well before 2008, Laurence was opening all her mail and around mid-August/September mum ended up in Wolper hospital (see my affidavit in the Probate Proceedings). After mum died, on one occasion when the 2008 will was brought up Laurence said: "I had no idea about it, haven't seen it"; [rejected]. … [164] I mentioned the 2008 will as soon as Lipton disclosed the contents of the 1997 will, saying: "What about mum's other will? I thought mum prepared another will in 2008 when she went to see John Lloyd". [rejected]. … [166] [Rejected]. During or after the reading of mum's 1997 will, when it became apparent to me that neither was going to mention or deal with the 2008 Will, and it appeared to me that the 2008 will was just going to be brushed under the carpet, I raised it, using the above words.
Later, in reply to evidence given by Mr Lipton about what happened when Mrs Rodny's 1997 will was read, Jeannette said: [289] [16] To say I was mildly shocked is ridiculous. Mr Lipton handed me tissues as I wept. It was at this time that I brought up what I had heard about a Will being drawn up by another lawyer. When we read the Will Nory said, "You can have a copy of the Will if you like". I was so distressed that I left without it, which is why I phoned and asked Libby to forward a copy. She was polite and said she would mail it.
In par 153 of this affidavit, Jeannette in substance repeats the evidence in par 128 of her first affidavit.
Then, in pars 155 and 156, Jeannette refers to a conversation between Jeannette, Avi, Mrs Rodny and Mrs Parker one morning in August 2008. She says that the conversation occurred after Avi had received a call from Mrs Rodny. Jeannette does not set out the substance of the conversation that occurred, but merely refers to her "affidavit in the Probate Proceedings where I have included this evidence".
Jeannette then gives evidence of a further conversation with Mrs Parker in pars 157 and 158.
It is intriguing that in par 161 Jeannette gives evidence of her understanding from conversations with Mrs Rodny that she went to Mr Lloyd multiple times, well before 2008. The evidence does not elaborate this possibility, but it may be significant that ultimately the evidence did establish that Mrs Rodny saw Mr Lloyd in December 2006.
Jeannette's evidence concerning her lack of composure at the reading of the 1997 will on 9 December 2014 is inconsistent with the evidence given by Mr and Ms Lipton, as I have described above.
The references in the evidence to Mrs Rodny being upset, upon discovering that Laurence had mortgaged part of her property without her knowledge, is apparently a reference to the mortgage that was secured upon 102 Balfour Road. The evidence does not readily permit a determination of the significance of this aspect of the evidence, although as Laurence pointed out, Mrs Rodny would have had to sign any mortgage over her property. I have not found it easy to understand what circumstances might have caused Mrs Rodny to be angry as a result of discovering that one of her properties had been encumbered by a mortgage. Apparently, the only mortgage was one granted in 1991 to which Mrs Rodny was a party.
Finally, Jeannette further elaborated her evidence concerning her knowledge of the 2008 will in her principal affidavit in the probate proceedings, affirmed on 28 September 2016: [2] I refer to my affidavit evidence filed in my family provisions proceedings No 2015/324982 (Family Provisions Proceedings) setting out in detail (inter alia) my deceased's mother's knowledge of my family's financial needs, as well as the various health issues suffered by me and my children; as well as my mother's on-going financial assistance provided to my family whilst she was alive, as well as her assurances that she "would take care" of me after her death and that I would not have any financial worries in this regard. The evidence also sets out the history relating to the various properties owned by my mother, as well as the various Wills executed by her, prior to the preparation of the Unsigned 2008 Will, prepared by Mr John Lloyd. [3] At or about this time I recall my mother called and spoke to my husband, Avi, who then said to me: "She wants me and you to go over there now". [4] We, as we had done on numerous occasions before, went straight to my mother's home. Mrs Ersi Parker, my mother's friend of over 50 years was also there. I recall my mother said words to the following effect: [5] "I have been to see Mr Lloyd with Ersi. My grandchildren will be taken care of. I left the building up the road to them. They will remember me. And I don't want Laurence to find out". [6] I knew who John Lloyd was and there were many instances where my mother would say to me: "I don't want Laurence to know", or "to find out". Whenever my mother assisted me financially, she would routinely say these or similar words. … [9] I also recall another conversation with my mother, at about this time, when my mother said words to the effect: "I want to make sure that my grandchildren are taken care of… Mother: "I am going to go to Lloyd so Laurence will not find out". … [14] At or about the time of the Lloyd Unsigned 2008 Will, I recall Mrs Parker also telephoned me and said to me words to the effect: "Your mother got a real shock at Lloyd's office. She was very unhappy when he did the searches". [15] I do not now recall what the shock referred to.
As will become apparent when I set out relevant extracts from Avi's first affidavit, which was made on 23 June 2016, Jeannette's evidence concerning the conversation that she claims in pars 3 to 6 took place between herself, Avi, Mrs Rodny and Mrs Parker conforms relatively closely with the evidence of the conversation given by Avi. One difference is that while Jeannette says that Mrs Rodny called and spoke to Avi, his evidence is that when she called Mrs Rodny spoke to Jeannette.
It is necessary for the Court to make a judgment as to the credibility of Jeannette's evidence and the weight that should be given to that evidence.
On the crucial issue of Jeannette's evidence concerning the conversation with Mrs Rodny in about August 2008 in her kitchen, in which Avi and Mrs Parker also participated, Laurence submitted at par 36A of his supplementary submissions that the alleged conversation with Mrs Rodny was an afterthought and not truthful.
I accept that Jeannette's evidence was not completely reliable, and was erroneous in a number of significant respects. In reaching the conclusion that follows I have had particular regard to the cross-examination of Jeannette at T-A 243 to 250 and 257 to 287.
I accept the evidence of Mr and Ms Lipton that Jeannette's recollection was in error in-so-far as she gave evidence that she became emotional and cried during the reading of the 1997 will, and that she raised the possibility of the existence of the 2008 will during the reading. That is a significant flaw in Jeannette's evidence, because although I am prepared to accept that Jeannette may have become upset after the reading when she had an opportunity to contemplate what she had learned, Jeannette nonetheless offered specific and repeated evidence that she raised the possibility of the 2008 will during the will reading. I note that Ms Lipton recorded in her note that Jeannette "has been crying ever since she left our office". At the least, this matter raises a significant doubt about the accuracy of Jeannette's recollection.
Jeannette was also mistaken about her assertion that Mrs Rodny saw Mr Lloyd shortly after the property at Carramar was sold when it was in fact sold about five years earlier. At one stage, Jeannette said that she became aware of the 2008 will in late 2008, but the preponderance of her evidence was to the effect that all relevant conversations occurred in about August 2008.
The main difficulty with Jeannette's evidence is its evolution in respect of the detail of the conversations that she claimed to have had about the 2008 will, and the fact that she initially spoke of having a conversation with Mrs Parker, and only later gave evidence of the crucial conversation with Mrs Rodny.
To put the issue in proper context, the first evidence chronologically of Jeannette saying anything about the 2008 will is the following part of Ms Lipton's 9 December 2014 file note: "But she has just remembered that about five years ago her mother went with her friend Mrs Parker (now deceased) to see John Lloyd, Solicitor, in Bondi Junction to make a new Will. She does not know if her mother signed the Will but the intention to change her old Will was there".
Although the file note is the best evidence available of what Jeannette said on the occasion, I bear in mind that, as Ms Lipton may not have been aware of the issues, she may not have recorded Jeannette's statement verbatim. The file note does establish, however, that before Jeannette was aware of the actual existence of the draft 2008 will, or its terms, she expressed her knowledge that Mrs Rodny had seen Mr Lloyd with Mrs Parker in about 2009. She expressed her understanding that the purpose was to make a new will. On the other hand, it appears that at that time Jeannette only understood that it was Mrs Rodny's intention to change her old will, and she did not actually know whether or not a will had been signed. However, as I have noted above, the evidence does not resolve whether Jeannette's doubt about whether Mrs Rodny had signed the will was caused by her having been told that in the call that she made to Mr Lloyd on 9 December 2014.
The first time Jeannette gave evidence of the source of her understanding that she conveyed to Ms Lipton was in par 128 of her 14 March 2016 affidavit in support of her family provision claim, where she only gave evidence of a conversation with Mrs Parker in "late" 2008. The conversation with Mrs Parker as recorded included Mrs Parker saying: "I took your mum with me to have her's updated as well", which implied that Mrs Rodny made a new will.
On the other hand, Jeannette gave evidence that Mrs Parker said: "She told me that she did not want to go back to Lipton, because she wanted someone impartial and unknown either to you or Laurence". The making of that statement is consistent with the evidence given by Mr Lloyd as to what Mrs Rodny said in her conference with him.
Avi was the first one to give evidence of the discussion in Mrs Rodny's kitchen (as shall be seen, in pars 243 to 249 of his 23 June 2016 affidavit).
Jeannette's statement of claim in the probate proceedings was filed on 26 July 2016. As I have recorded above, par 12 of the statement of claim alleges: "Immediately after attending the offices of Mr Lloyd, the deceased informed the Plaintiff's husband, Abraham Weisbord, that she had deliberately gone to another solicitor, Mr Lloyd, and had changed her will and requested that Abraham not tell the Defendant". The statement of claim was prepared after the date of Avi's affidavit but before Jeannette gave her later evidence of participating in the conversation in Mrs Rodny's kitchen.
There was no evidence of the circumstances in which instructions were given on behalf of Jeannette to her solicitors for the drafting of the statement of claim, including par 12. The allegation in that paragraph is broadly consistent with the final version of Jeannette's evidence, but no explanation has been given for the assertion that Mrs Rodny informed Avi of what she had done, rather than both Avi and Jeannette.
Part of the difficulty in assessing the significance of this evidence is that the Court does not know when Avi became involved in providing evidence to Jeannette's solicitors as to the facts relevant to her probate claim. It is probable that the solicitors initially obtained instructions from Jeannette as the client, and treated Avi as a witness to be interviewed in due course. Differences of recollection as between Jeannette and Avi could have been the cause of the evolution. There is force in the submission made on behalf of Laurence at par 28 of his supplementary submissions that Jeannette would be expected to have given evidence of a conversation with Mrs Rodny at an early stage if it had taken place. That she did not do so would justify a finding that Jeannette did not initially recall the conversation.
Jeannette was cross-examined on what she had said in par 5 of her 28 September 2016 affidavit in the probate proceedings, where she said that Mrs Rodny told those present: "I have been to see Mr Lloyd with Ersi. My grandchildren will be taken care of. I left the building up the road to them. They will remember me. And I don't want Laurence to find out".
At T-A 247.32 Jeannette asserted positively that Mrs Rodny said she signed the will: Q. She never told you she'd signed any document, did she? A. She did when we came over. Q. Where is that? Where is that piece of evidence where your mother said, "I have signed a document"? A. When we went over there-- Q. Where is that piece of evidence in this case where your mother says, "I have signed a document"? A. She told us, "I have made a will." Q. Where is the evidence in this case where your mother says, "I have signed a document"? It's not there, is it? A. It was said in conversation with Mrs Parker and my husband witness.
At T-A 286.35 the issue was concluded as follows: Q. She never told you she had made a new will. Correct? A. Which one are you referring to? Q. She never told you she had made a new will with Mr Lloyd. A. I assumed by the way she told me she had put up the road in the children's name, that that's what she meant. She said she had been to Mr Lloyd and had put that building in their name, so for me one and one make two. Q. Was she putting things in their name or was she writing wills? A. But she had in the will put it in their names, after seeing Mr Lloyd. You would assume that means she wrote a will. Q. I wasn't there, none of us were there, this is why your evidence is so crucial. You made assumptions as to what your mother might have meant from what you think she said. That's the case, isn't it? A. Not really. Q. You don't actually know what she did, do you? A. No, but I took her on her word, and Mrs Parker was there and agreed and she had gone to the lawyer with her.
The language used by Jeannette in this part of her cross-examination is more consistent with Jeannette having assumed that Mrs Rodny had signed a will based upon the statements Mrs Rodny made, rather than that Mrs Rodny explicitly said that she had signed the will.
I have referred above to the evidence concerning Jeannette's medical and psychological disabilities. Those disabilities include depression, anxiety disorder and panic disorder for which Jeannette is required to take medication. It is well accepted that these disabilities can diminish concentration and affect a sufferer's memory
While I formed the view that Jeannette's capacity to give evidence in support of her case was unfortunately diminished because of her medical and psychological disabilities, I also formed the view that she was to the extent of her capacity to do so trying to give her evidence truthfully and reliably in accordance with her genuine recollection of events. In particular, in response to the questions that she was asked in cross-examination, Jeannette appeared to respond readily and directly to the questions and to do her best to give responsive answers. It appeared to me, with respect, that Jeannette sometimes did not understand subtleties in the questions that were put to her. However, she stood her ground and maintained in the face of questions put to her from a number of angles of attack that she was present when Mrs Rodny made the statement related by Jeannette in par 5 of her affidavit in the probate proceedings.
While I recognise that there are limitations in the reliability of the evidence that Jeannette has given, I do not accept that she is an un-truthful witness or that she has made up her evidence to suit her case. There is some chance that her recollection of events has been influenced by sources of information that have come to her during the course of the proceedings, including perhaps most importantly Avi's recollection of relevant events. In my view it would be wrong to discount Jeannette's evidence entirely, and it will be necessary to assess the weight that should be given to it in the light of all of the other evidence.

[35]

Avi's evidence

Avi's first affidavit was affirmed on 23 June 2016, shortly before the filing of the statement of claim in the probate proceedings. He gave the following evidence concerning the 2008 will. [243] On one occasion in August 2008, Jeannette received a call in the morning and told me, "That was mum. She wants us to come over." [244] As we arrived, we walked into the kitchen and Mrs. Rodny was sitting at the kitchen table with Mrs Parker drinking tea and having cookies and cake. Rose asked us "Do you want coffee and cake?" [245] I made myself a coffee and sat at the table. While drinking our coffee, Mrs Rodny looked at both my wife and I and said, "Recently I went to a different lawyer named John Lloyd and made a new will. I want to give the block across the road to your children." [246] Mrs Parker then said words to the effect of, "You know your mother was very upset when the lawyer did some research and told her that a mortgage had been obtained over one of her properties and she didn't even know about it". [247] Mrs Rodny then said words to the effect of, "I don't want Laurence to know, so please don't tell him. I don't want him to find out so I didn't go back to his old friend, Lipton". [248] Mrs Parker said, "Don't tell anyone that I went with your mother. I don't want it to get back to Laurence and then he will give trouble to my boy, Shimon". [249] I replied, "Sure, I'm not going to tell anyone. I don't want to make any problems or get Mrs Rodny or your son in trouble. I have nothing to do with him anyway."
This is the first evidence (in time) that Mrs Rodny specifically said that she had made a new will in which she had left 102 Balfour Road to the grandchildren.
The recollection given by Avi of the conversation is consistent with the evidence given by Mr Lloyd of Mrs Rodny stating that she did not want Laurence to be informed that she had made a new will, or of its terms.
Avi stood by his evidence in cross-examination. He had a quaint way of justifying his recollection by saying that it was 150% correct, but I took that to be a figure of speech. Avi said that he had not read the affidavits of his wife or children and had only read the parts of Laurence's affidavit that he had to answer.
Avi contradicted the evidence in par 243 of his affidavit by saying that he received the call from Mrs Rodny and then handed the phone over to Jeannette. It is most unlikely that either Jeannette or Avi would have a reliable recollection of such a minor matter as which of them picked up the telephone. I do not think any inconsistency or confusion about who picked up the phone is material. Avi appeared to have a slight difficulty in understanding some questions, but on the whole his adherence to his affidavit evidence was firm and forthright.
It is necessary to assess the weight that should be given to Avi's evidence, which includes a consideration of his credibility as a witness.
In my assessment, Avi gave his evidence somewhat dogmatically. That assessment is reflected in Avi's tendency to say that he was 150% sure of the correctness of his evidence.
Avi did not when giving his evidence display any outward manifestation of untruthfulness, but as a matter of general impression I was not confident that he was able to give evidence of relevant events with precise accuracy from a clear memory. Nothing in the manner in which Avi gave his evidence caused me to conclude that he was not being truthful in accordance with his own conception of what had occurred, but I am not satisfied that Avi's evidence is completely reliable in relation to the timing of events and what was said and by whom. That conclusion applies to the evidence given by Avi of the crucial conversation between himself, Jeannette, Mrs Rodny and Mrs Parker in Mrs Rodny's kitchen.
I also cannot ignore the possibility that the evidence given by Avi may have been subconsciously influenced by the fact that his children stand to gain about $5,000,000 between them if the probate claim succeeds.
Furthermore, the credibility of Avi's evidence is negatively affected by the changes that occurred in Jeannette's evidence over time, in so far as Jeannette's evidence evolved so that it substantially mirrored the evidence that was firmly asserted by Avi concerning what occurred during the kitchen conversation. There is no proof that Avi and Jeannette conferred on this issue, but it is hard for the Court to accept that the couple could have resisted discussing the subject, considering the significance of the issue to the financial well-being of their children.
The aspect of Avi's evidence with which I have the most difficulty concerns the firmness of his evidence that the kitchen conversation occurred on one occasion in August 2008, which he qualified as meaning mid-August 2008.
Avi did not support his evidence concerning the time that the kitchen conversation occurred by referring to any events that could have assisted him in fixing the timing of the kitchen conversation as being in mid-August 2008. Avi's affidavit was prepared some eight years after the alleged event. While the kitchen conversation, if it occurred, was a significant one, there was nothing about its circumstances that would naturally have fixed it in time in Avi's memory.
The difficulty with this evidence arises out of the fact that Avi said (at par 245 of his affidavit) that Mrs Rodny said: "Recently I went to a different lawyer named John Lloyd and made a new will". Avi reported Mrs Rodny as having made that statement in the past tense. As set out above in my outline of Mrs Rodny's medical condition, Mrs Rodny was admitted to the Wolper Jewish Hospital on 19 August 2008 and discharged on 28 August 2008. Given that fact, if the kitchen conversation happened in mid-August 2008, it must have happened after Mrs Rodny saw Mr Lloyd on 15 August 2008 and before she was admitted to hospital on 19 August 2008.
The fact of the kitchen conversation having happened in that short time frame cannot be excluded, but if it did happen, that would have significant consequences to the Court's consideration of the evidence as to how Mrs Rodny could have believed at that time that she had signed a new will prepared by Mr Lloyd. If Mr Lloyd's 15 August 2008 letter was not posted, Mrs Rodny could only have then believed that she had made a new will if she thought that she had signed the will on 15 August 2008. If Mrs Rodny was waiting to receive the 15 August 2008 letter, and understood that it would contain a draft will for her consideration, she would not have had time either to receive the letter, or to have cause for concern that it may have gone astray.
It is not necessary to analyse these possibilities further, because they involve speculation. It is not impossible that Mrs Rodny believed in the period between 15 and 19 August 2008 that she had made a new will in Mr Lloyd's office. Placing the kitchen meeting in that short time period does, however, confine the circumstances in which it could be concluded that more probably than not Mrs Rodny had come to the belief that she had made a new will. The real point is that it is difficult to accept the confidence with which Avi placed the meeting in mid-August 2018.
I do not reject Avi's evidence, and do not believe that he has made his evidence up. But I do not accept that Avi's evidence is sufficiently reliable by itself to permit the Court, in the absence of some support or corroboration, to find that Mrs Rodny made the statement during the kitchen meeting in mid-August 2008 that she had already made a new will drafted by Mr Lloyd, and in that will she had given 102 Balfour Road to Avi's children. Avi's evidence is capable of supporting a finding to that effect, but it is insufficient.

[37]

Evidence of Mr Andrew Price

Mr Andrew Price affirmed affidavits on 23 June 2016 and 7 October 2016. He was a close friend of Laurence for a period, although they have since had a serious falling out.
Much of Mr Price's evidence concerned his observations of the relationship between Mrs Rodny and Laurence, which was tendered to support the plaintiffs' thesis that in various ways Laurence dominated and controlled Mrs Rodny.
For present purposes, Mr Price's evidence is relevant to the issue of whether Mrs Rodny intended that the 2008 will would operate as her will.
In his 23 June 2016 affidavit, Mr Price gave the following evidence on this subject: [26] On more than one occasion in the past few years, when I was with Laurence, the topic of his Mother's will and estate came up. [27] On one such occasion, Laurence said words to the effect of "I can't believe my Mother wants to give Jeannette more than half." [28] I asked him "How come she gets more?" [29] He replied, "She told me I don't need the money, and that she has Grandchildren who need to be looked after. I think this is totally unfair. At the very least, I should get 50%, if not more". [30] I replied, "No, that makes sense. I can understand your Mother wanting to help her Grandchildren. You have no concept of how much a parent loves their child or Grandchild, as you have been childless all your life. It is your Mother's right to allocate her will as she sees fit - it's not really up to you." [31] He replied, "I am still discussing it with my mum". He then looked at me and said "We'll see".
Paragraph 24 was rejected on the ground of form and leave was given to the plaintiffs to lead this evidence from Mr Price in proper form.
In his second affidavit, affirmed on 7 October 2016, Mr Price added the following evidence relevant to Mrs Rodny's intention to make a will in terms of the 2008 will (the first sentence was also rejected as being bad in form): [10] He said on a number of occasions that the will his mother had prepared was unfair. He would say, "Just because my sister has children doesn't mean she should receive any more than me. If Dahlia and I were to have kids, then we would balance it out so that we received equal."
Leave was also granted to the plaintiffs to lead evidence from Mr Price in proper form on the subject of the rejected first sentence of this paragraph.
These parts of Mr Price's affidavits would tend to support a finding that he had one or more conversations with Laurence in which Laurence informed Mr Price that he was aware of Mrs Rodny's testamentary intentions. Those intentions involved giving Jeannette more than Laurence and making some provision for her grandchildren. Laurence could only have obtained this information from Mrs Rodny, unless he also had access to the 2008 will.
That information is more consistent with Mrs Rodny believing that she had made a will in terms of the 2008 will than that the 1997 will continued to be her last will. Because of the ademption of the gift of Carramar Avenue to the grandchildren, the effect of the 1997 will would have been to give more of Mrs Rodny's estate to Laurence than it would Jeannette's side of the family.
Because of a break in the hearing, Mr Price was recalled to complete his evidence, and he was permitted to provide supplementary evidence in chief in accordance with the leave granted to the plaintiffs by means of a written statement that was admitted as Exhibit K.
Relevantly, Mr Price gave the following additional evidence concerning his conversations with Laurence about Laurence's understanding of Mrs Rodny's testamentary intentions: Paragraph 26 … 8. In about the second half or late 2008 I recall a conversation to the following effect with Laurence, which was raised by him for the first time, but subsequently ongoingly repeated about 20 times, over the next 12 months or more: Laurence: I cannot understand my mother! My mother told me that most of her Will was going to go to Jeannette, to my sister. They are her wishes. She told me she needed the money more than me and she had 4 grandchildren and she wanted to look after her grandchildren. She told me I was not married and did not have any children. She told me I did not need the money. He then exploded and said in a very loud aggressive tone: It is totally wrong. My sister has her cornered. She is paying for all my sister's bills. It is crap. It is wrong. It should be 50/50. My sister gets money from her all the time. My mother gave her a ring and jewellery. She has had enough already. If she does not stop giving the money, they will never get jobs. That f…. mumbles has never had a job. Spends all his time praying. He should get a f…. job. No one is working. My mother is supporting her family. And now they are going to get most of her Will. My mother told me this is what her will said. My sister is getting more of my mother's money and more of her estate than I am. That's not fair. 9. During this period we also had a conversation to the following effect about the grandchildren: Laurence: She is leaving most of her will to my sister and the grandkids. That is not fair! Do not you think that is not fair? Those grandkids will never get a job now! Me: I do not have a grandchild yet. All I know is people are always telling me that the relationship between a grandparent and a grandchild is even stronger than a child and a parent. Of course she wants to make sure her grandchildren are looked after. Laurence: That's bullshit. That is just feeding bad behaviour. They will just blow it all. I told her it was unfair. I told her I did not think it was fair and it was feeding bad behaviour. … Paragraph 10 13. The conversations about his mother's will started in about the second half or late 2008 and continued over the next 12 months or more as set out above. 14. I also recall that on one occasion when Laurence again raised his mother's Will in a conversation similar to the conversations as set out above at paragraphs 8 and 9, to the following effect: Laurence: I cannot believe my mother has left more of her estate to my sister and her grandchildren. They are all bludgers. It is not fair. Me: You do not have children or grandchildren. You do not understand. Why do you care anyway? You are sitting on $50-$100 million. Who cares what your sister and her family gets? Laurence: I made that myself. It is just really not fair.
While this additional evidence of Mr Price has the hallmarks of being settled in the conventional way by lawyers, its effect in substance is to elaborate the evidence given in the original affidavits.
Paragraph 27 of Mr Price's 23 June 2016 affidavit recorded that Laurence said words to the effect: "I cannot believe my mother wants to give Jeannette more than half". If Laurence made that statement to Mr Price, it is consistent with Mrs Rodny expressing an intention to achieve that result in the future.
The statements attributed to Laurence by Mr Price in Exhibit K are more specific in their bearing upon what Mrs Rodny may already have done. Paragraph 8 has Laurence saying: "My mother told me that most of her Will was going to Jeannette, to my sister". Further, par 9 records Laurence as having said: "She is leaving most of her will to my sister and the grandkids". Paragraph 14 records Laurence as having said: "I cannot believe my mother has left more of her estate to my sister and her grandchildren".
The increase in the specificity of Mr Price's recollections of what Laurence said to him justifies an element of caution in how the Court should treat the evidence in Exhibit K. However, there is no proper basis for the Court to discount Mr Price's evidence in Exhibit K on the assumption that in some way he has been induced to formulate his evidence in a way that enhances the plaintiffs' case.
Mr Price's evidence is significant for two reasons. First, if it is accepted, it establishes that Laurence told Mr Price that he had talked to Mrs Rodny about her testamentary intentions, and learned that she had left more of her estate to Jeannette's side of the family than to Laurence, and by that means had provided directly for her grandchildren. That is evidence that supports a finding that Mrs Rodny believed she had made a will in terms of the 2008 will. Secondly, the evidence is inconsistent with evidence given in one of Laurence's affidavits that, until the reading of the will that happened in Mr Lipton's office on 9 December 2014, Laurence had no knowledge at all of the contents of any of Mrs Rodny's wills (which I will come to below).
The issue of whether the Court should, in substance, accept Mr Price's evidence on this subject does not only depend upon the conventional questions that arise in determining the credibility of evidence given by a witness. As to that, I found Mr Price generally to be a credible witness, but it is clear that his close relationship to Laurence came to a sad end over the circumstances in which Mr Price lost what I take to be a lucrative employment position, and that engendered an attitude of enmity towards Laurence which Mr Price asserted he had gotten over. Mr Price lives in Hong Kong, and in practical terms he gave evidence while visiting Sydney and has now returned home. Accordingly, while the Court was given no particular reason to disbelieve Mr Price, it would be appropriate for the Court to regard his evidence with some care, particularly on those subjects where his evidence is forcefully denied by Laurence.
That circumspection will generally have more effect in respect of those parts of Mr Price's evidence where he spoke of isolated events that tend to show that Laurence treated Mrs Rodny badly and exercised control over her financial affairs. On those subjects, there is a real risk that Mr Price's experiences may not be representative, and may be coloured by Mr Price's reactions to the circumstances that led to the end of his friendship with Laurence. Generally, they are subjects which need not be fully resolved by the Court.
The evidence that Mr Price gave concerning his discussions with Laurence about Laurence's attitude to the testamentary dispositions that Mrs Rodny intended to make is in a somewhat different position. That evidence is not greatly affected by the opportunities that Mr Price had to experience Laurence's relationship with Mrs Rodny, and does not depend upon Mr Price's perceptions and his judgments about the true emotional significance of the interactions between Laurence and Mrs Rodny. On the contrary, Mr Price's evidence on this subject was simply of conversations that he had with Laurence. While it is always possible that Mr Price has not accurately remembered the terms of the conversations, in relation to their substance, the primary issue is whether conversations to that effect happened or not.
The question is: as Mr Price has given evidence of the conversations, where did he get that information, if not from having those conversations with Laurence? Even if I were to find that Mr Price hated Laurence (and I would not go that far), hating Laurence by itself would not give Mr Price any means to invent the substance of the conversations for the purpose of injuring Laurence's case. There is no objective basis for the Court to infer that Mr Price could have known of the relevant effect of the 1997 will, or the fact that Mrs Rodny intended to leave her estate in a manner consistent with the terms of the 2008 will, unless given that information by someone. Mr Price could not have concocted the substance of the particular conversations with Laurence to which he deposed given that he did not have independent knowledge of the underlying facts that could have caused Laurence to form the attitudes exhibited by the statements attributed to him by Mr Price.
There is an alternative explanation for how Mr Price could have falsely attributed the conversations to Laurence, but the alternative would involve a third party with a relatively precise understanding of the legal and factual issues relevant to the probate aspect of these proceedings assisting Mr Price in creating false evidence. That involvement could range from inventing the conversations and putting them into Mr Price's mouth, to conveying the underlying facts and legal issues to Mr Price in a manner that would have given Mr Price the necessary basis for concocting evidence of conversations with Laurence that would undermine Laurence's case on the probate issue.
The only candidates for involvement with Mr Price in enabling him to concoct his evidence of the conversations with Laurence are the plaintiffs and their solicitor, Mr Benjamin Kramer.
Laurence made submissions concerning the credibility of the evidence given by Mr Price at pars 56 to 60 of his supplementary submission. He said in par 56: "Price's evidence is confused and motivated by his ongoing dislike of the Defendant". There is some force in the submissions made by Laurence, as I have acknowledged above, although I do not accept that they justify the Court in rejecting Mr Price's evidence.
It does not appear that Laurence has met head on the necessity to deal with the issue of how Mr Price could have known to give the evidence that he did of the substance of those conversations, if they did not take place.
In par 2(ra) of his supplementary submission, in the context of responding to Mr Price's evidence as to how Laurence treated his mother and controlled her finances, Laurence said: How did Price get involved? Who approached him? At T73, Mr Kramer says he can't recall how he got involved. His name came up when he was speaking to potential witnesses. Why would any witness believe Price would have anything useful to say and that Price, a busy executive, would go out of his way to say it? What drove Price and which potential witness Kramer spoke to believed Price would be cooperative? At T74.4, it becomes apparent his name came from Joel Weisbord. Why would Joel believe that Price, who was no more than an executive in a company in which Laurence had an interest, might be willing to make allegations (submitted to be unfounded) about Laurence?
It is true that the plaintiffs have not led evidence of how it was they learned that Mr Price could give the evidence that he has given, but evidence of that nature is virtually never given in proceedings, and it is not expected by the Court that parties should give collateral evidence of the investigations that they have undertaken that have led to the evidence that has been tendered. Even though, in the present case, there are grounds for the Court to wonder about how the plaintiffs came to learn that a former friend of Laurence, living in Hong Kong, was able to give cogent evidence in support of their probate case, the Court would not expect the plaintiffs to lead that evidence unless Laurence sufficiently foreshadowed a case that he would argue that the Court should not accept Mr Price's evidence on a particular subject as being genuine, because by some step taken by or on behalf of the plaintiffs in the process of identifying Mr Price as a witness, and proofing him, the plaintiffs effectively provided a basis for Mr Price to concoct the evidence that he gave of the conversations with Laurence on the subject of Mrs Rodny's testamentary intentions.
As it happens, Mr Kramer was cross-examined at the hearing on 10 October 2017 (T-A 71.30 to 86.29). That was well after the service on Laurence of Mr Price's 23 June 2016 and 7 October 2016 affidavits. Those affidavits contained evidence, which is set out above, of the substance of Mr Price's conversations with Laurence on the subject of Mrs Rodny's testamentary intentions. It is true that the occasion for the cross-examination was that Mr Kramer had made an affidavit to explain why Mr Price could not attend for cross-examination, and for the purpose of seeking an order that cross-examination should take place by video link. Yet it is also true, unusually, that the solicitor for the plaintiffs was cross-examined about the circumstances that led Mr Kramer to approach Mr Price to give evidence in the proceedings (T-A 73.22 to 77.8), and as to the process by which Mr Price's affidavits were prepared.
Nothing was put to Mr Kramer that in any way could support Laurence now being able to submit that Mr Kramer or his clients had done anything at all to influence the content of the evidence that has been given by Mr Price.
Jeannette, Avi and their four children were cross-examined. It was not suggested to any of these witnesses in cross-examination that they had provided any information to Mr Price that could have informed Mr Price of the terms of the 2008 will, or otherwise have assisted him to concoct the substance of the conversations that Mr Price said that he had with Laurence about Laurence's conversations with Mrs Rodny about her testamentary intentions.
In fairness to Laurence, I do not take him ultimately to have made any submission that the Court should disbelieve Mr Price's evidence concerning the occurrence of the conversations with Laurence, on the basis that Mr Kramer or the plaintiffs or anyone else on their behalf had caused or assisted Mr Price to concoct that evidence. I have set out the submissions made on Laurence's behalf above specifically to show that they fall short of making any such submission. They do appear to seek to introduce an element of doubt as to what led the plaintiffs to obtain Mr Price's evidence, but any submission to that effect does not extend to impeaching the process by which the evidence was obtained.
Mr Price was cross-examined on 13 November 2017 (I will refer to these transcript references as "T-C") (T-C 3.31 to 28.20). He was asked how he learned that there was litigation concerning Mrs Rodny and her estate, and said that he had received a phone call from one of Jeannette's sons (T-C 4.36). He was asked if Mr Kramer could call him and he agreed. Mr Kramer called him, but he was not told the nature of the litigation (T-C 4.43). The following cross-examination then took place, T-C 4.45 to 5.13: Q. Mr Kramer rang you? A. Yes. Q. What did he say? A. He asked me what ‑ if I knew of Laurence. I said "Yes, I knew Laurence for some time". He asked me about anything, if I knew of Laurence's relationships with his mother or I met his mother. We discussed that and then he asked me if I knew anything about a Will. I said "I did" and I told him what I knew. Q. Did you tell him everything you knew? A. Not on that call, no. Q. When did you first learn that there was a litigation involving Mr Laurence Rodny and family members about his mother? A. When he asked me then to provide a statement. I said "I wasn't interested. I didn't want to get involved". He said "We're going to have to subpoena you". Q. At this stage where were you living? A. In Hong Kong.
Mr Price's initial resistance against getting involved in the litigation weighs against the suggestion that he has given evidence for the purpose of hurting Laurence.
The cross-examination continued later: T-C 8.36 to 9.21: Q. Did you ring him for the second call or did he ring you? A. He rang me. Q. In that call, did you learn, either by questioning or by information provided, that there was a Court case? A. Yes. Q. What were you told? A. That there was a dispute over the ‑ there was a Court case between Laurence and his sister with a dispute about Rosa's estate. Q. In particular, about the Will? A. Yes. Q. Did you learn that there was an investigation or a concern that a particular Will had not been brought forward or could not be located? A. I know nothing about any of those issues. Q. At that time, did you learn that there was a concern or a dispute about a Will that could not be located or had not been brought forward? A. I still don't know anything about a Will that can't be located. Q. When you say "still" do you mean as of today? A. As of right now. Q. Did you learn there was a dispute about a Will that couldn't be located? A. As I said, I don't know about a Will that can't be located. Q. I'm not asking you now what you know. Did you learn there was a dispute? A. Yes. Q. What was so hard about answering that question when I first asked it? A. Did you question me about a Will that is not found. I know nothing about that. I'm not going to lie. Q. You know there was a dispute? A. I know there was a dispute.
At T-C 13.35 to 14.6, Mr Price was questioned about the extent to which he was given guidance about the contents of his affidavit: Q. Were you given any guidance or direction as to what material should go into the affidavits and what shouldn't go? A. I was given guidance on what was relevant. I was never told what to put in. Q. Who gave you that guidance? A. Mr Kramer specifically asked me to put down things regarding Laurence's mother, the relationship he had with his mother and anything that I heard about a Will. Q. After that initial conversation with one of Jeannette's sons, have you had conversations with that son subsequently? A. Never. I don't even know his name. Q. Have you had conversations with any of Jeannette's children? A. Nope. Q. When was the last conversation you had with Jeannette? A. Never spoken to Jeannette. Q. Have you had any conversations with Jeannette's husband? A. Never.
The following cross-examination took place concerning the conversations in which Laurence had made statements to Mr Price relevant to Mrs Rodny's testamentary intentions, at T-C 24.24 to 28.19: Q. How many conversations do you say you had with Laurence where he spoke about his mother's Will? A. In varying forms and length of conversation there would have been 20. Q. Not 15, not 25‑‑ A. I am‑‑ Q. ‑‑20? A. ‑‑I am estimating 20. It was numerous. I can't count them. … Q. And when did they start? A. About his mother's Will? Q. Yes? A. As I said before, I think it started in 2006 and seven. However I am certain it was a topic of discussion from 2009 onwards. Q. And what makes you think it started in 2006 and 2007? A. Because that is my recollection. Q. That is all we have got, your recollection? A. Yes. Q. So it is something more than ‑ now more than ten, eleven years ago? A. Exactly and that is why I can't be certain of the date and whether it started from then. I am only certain from 2009 onwards. Q. But you are under oath and you are prepared to say what your evidence is is true and correct? A. Yes. Q. Now, tell us what Rodny said ‑ what Laurence said about his mother's Will? A. Okay. In a discussion he said to me that he had spoken to his mother about her Will and she said to him that she was going to leave the majority of the Will to his sister and her grandchildren. Q. I see. A. Yes, and Rosa's grandchildren. Laurence said he thought that was unfair and that he disagreed with that and he said it should be at least 50/50 and his mother said, "You don't need the money, the grandchildren need the money and apart from that you are not married. You don't have children". Laurence thought that was unfair. … Q. Now, I want to put it to you that Laurence made no such statements about what his mother was putting or supposedly putting in her Will? A. That is your view. It is not mine. Q. I will take it you disagree with me? A. I do. … Q. I want to put it to you that your alleged conversations where Laurence spoke to you about the contents or the supposed contents of her Will and how various family members were to benefit were untrue? A. Well, you are saying that but it is not my ‑ it is not my belief. … Q. You say he was telling you in 2006/2007 that Jeannette and the grand‑kids were going to get more. Is that what you are saying? A. That is what I can recall from there, although the memory is vague but I am certain from 2009 it was a definite discussion. Q. I want to put it to you that your memory is so vague that in fact these conversations never took place and that you are making them up because frankly you don't like Laurence and you don't like what hand you say he had in your dismissal from your employer? A. I find that almost offensive but it is completely untrue. … Q. Can you then explain why in paragraph 13 of your recent statement you say: "The conversations about his mother's Will started in about the second half or late 2008 and continued over the next 12 months or more as set out above." Now, you would agree with me that 2008 and "the next 12 months or more" is radically different from seven ‑ six, seven or eight years, isn't it? A. Sorry, could you ask that again? … Q. Do you agree with the proposition that a period that starts in 2008 and continues, to use your words, "over the next 12 months or more" is radically and significantly different to the impression you seek to give in the witness box today when you say the statements or conversations about the Will went for seven years or so? A. I don't think they are at opposites. The conversation did go for many years. Q. Well, did they go for seven years or did they go for 12 months or more? A. I think in that 12 months they were more intense than at any other time. … Q. Sir, again, I put it to you that you are making up these conversations, you are making up the frequency, you are making up the period of time basically to put the knife into Laurence? A. I - once again I find that borderline offensive and totally untrue.
I have reached the conclusion that the Court should accept the substance of Mr Price's evidence of his conversations with Laurence about Laurence's discussions with Mrs Rodny about the effect of her will.
First, I found Mr Price to be a generally credible witness in the manner in which he gave his evidence. Apart from exhibiting passive-aggressive responses on a number of occasions to questions put to him that called into question the veracity of his evidence, I found that Mr Price gave his evidence in a direct and responsive way in which he appeared to me to be giving evidence of his genuine recollection in a direct and unequivocal manner.
I am fortified in my acceptance of the substance of Mr Price's evidence by the fact that the statements that Mr Price attributed to Laurence were in tune with the terms of the 2008 will.
Furthermore, the terms of the statements attributed to Laurence, and their tone, concerning Laurence's dismay about Mrs Rodny having supported Jeannette and her family and his attitude to his nephews' approach to life are highly in tune with the attitude which the general body of evidence suggests Laurence had towards his sister and her family, and in particular the approach to life of his nephews. In that respect Mr Price's evidence concerning the statements made to him by Laurence has the 'ring of truth'.
It may be true, as Laurence's submissions suggest, that it was extraordinary good fortune on the plaintiffs' part that they were able to find a witness in the position of Mr Price who has been able to give the evidence that he has given, but that circumstance may reflect nothing more than the diligence that the plaintiffs' lawyers may have applied to the task of searching for witnesses who were able to give material evidence.
To the extent that it may be implied in Laurence's submissions (it was not expressly asserted) that the Court should reject Mr Price's evidence on the basis of the improbability of the plaintiffs' lawyers being able to find in Hong Kong a former friend and business associate of Laurence who has been able to give the evidence given by Mr Price, I would reject that submission because its making would require a finding that in some unknown way the plaintiffs or their lawyers improperly influenced the content of the evidence that Mr Price was able to give. There is no basis for the Court to reject Mr Price's evidence for that reason.
I accept that Mr Price had apparently developed a state of enmity towards Laurence by reason of extraneous events concerning the loss by Mr Price of a valuable employment position, and that enmity may not entirely have abated, notwithstanding Mr Price's assertion that he had moved on in his life. While Mr Price's attitude to Mr Laurence may have been a motivation for him to go out of his way to give evidence in these proceedings, it is incapable of explaining the content of his recollection.
I have not ignored the fact that Mr Price gave evidence to the effect that Laurence emotionally mistreated Mrs Rodny in his day to day dealings with her, and that evidence is highly contentious. The evidence given by Mr Price on this subject was part of an exhaustive campaign by the plaintiffs to prove that Laurence emotionally bullied and manipulated Mrs Rodny. I am not sure that even now I understand to what issues the plaintiffs say this evidentiary campaign was relevant. It does not appear to be relevant to the probate case, and in my view could only be dimly relevant to the family provision claims.
For present purposes, it is sufficient to note that Laurence denied comprehensively that his relationship with Mrs Rodny was as claimed by the plaintiffs. He also called a number of Mrs Rodny's carers in his case, the effect of whose evidence was that Laurence had a loving and caring relationship with Mrs Rodny.
I raise these matters in this context to record the fact that I have not ignored the effect of the forensic contest concerning the nature of Laurence's relationship with Mrs Rodny in assessing Mr Price's credibility for the purposes of the probate claim.
Ultimately, I formed the view that the question whether Laurence had a proper relationship with Mrs Rodny is not a binary question. The relationship may have changed at different times and different circumstances. It will have depended upon the character and attitudes of the two persons involved. It will have depended upon the opportunities for observation and the perceptions of each observer. At the end of the day, I do not consider that the outcome of the forensic battle was a victory for one side or the other. I am yet to understand how it matters.
The point of these observations is that I do not accept that Mr Price's evidence of his observations of interactions between Laurence and Mrs Rodny is disproved or discredited by the relatively substantial body of evidence that suggests, in other circumstances, Laurence behaved in a loving and caring manner towards Mrs Rodny. Even if there were grounds for doubting whether the evidence given by Mr Price was representative of Laurence's relationship with Mrs Rodny, that is not a matter that would cause me to reject the reliability of Mr Price's evidence of his conversations with Laurence relevant to the probate case.
The credibility of Mr Price's evidence cannot properly be considered in isolation from the evidence that Laurence gave, and in particular his response to Mr Price's evidence. In forming the opinions that I have stated concerning the reliability of Mr Price's evidence, I have had regard to the results of my consideration of Laurence's evidence, to which I will now turn.

[38]

Observations on the plaintiffs' case against Laurence

Before I consider Laurence's evidence it will be appropriate to outline the case made against him by the plaintiffs.
It should be remembered that strictly Laurence's primary role in these proceedings is that he is the executor of Mrs Rodny's 1997 will, and thus the appropriate party to resist the plaintiffs' probate claim as well as the family provision claims that they have made. Laurence is also the favoured beneficiary under the 1997 will.
The issue in the probate claim is whether Mrs Rodny intended the 2008 will to form her will, and the issue in the family provision claims is whether the 1997 will made inadequate provision for the proper maintenance, education or advancement in life of the plaintiffs, and if so what order for provision out of the estate of Mrs Rodny ought to be made for their maintenance, education or advancement in life.
While the conduct of Laurence may have some bearing on these questions, it is likely to be limited. The resolution of the probate claim requires the Court to determine Mrs Rodny's intention, and factual issues going to why the 2008 will may not have been executed by Mrs Rodny may be relevant. While Laurence's actions may have some bearing upon that question, that relevance is likely to be limited to any involvement that he had in the 2008 will not being executed.
Similarly, Laurence's conduct is likely only to have a peripheral bearing on the resolution of the family provision claims. That is particularly so as Laurence has not put his own financial position and needs in issue.
Yet it is immediately obvious from a consideration of the way the plaintiffs opened their case, the evidence that they tendered, and the manner in which Laurence was cross-examined, that the plaintiffs sought to challenge the decency and propriety of Laurence's conduct virtually over the whole of his life, and particularly following the death of his father. This was a forensic excess that substantially prolonged the hearing and diverted the Court from the difficult issues that truly require resolution.
The submission made on behalf of Laurence that the plaintiffs can "make (endless and unjustifiable) criticisms of [Laurence] but that is wholly irrelevant to the creation of a will by [Mrs Rodny]" is substantially correct.
The plaintiffs propounded a case that Laurence was reasonably well behaved during the lifetime of his father, but after Mr Rodny's death Laurence is alleged to have adopted an aggressive approach to Mrs Rodny and to progressively have begun to dominate her so extensively that by 2008 she was afraid of him and largely unable to exercise her own free will. Most extremely, the plaintiffs submitted that Laurence was always "obnoxious" but after his father died he began to act as a "tyrant" (written submissions par 81).
The plaintiffs alleged that Laurence took advantage of his control over Mrs Rodny to exert pressure on her to execute the 1997 will (by which he received a disproportionate share of Mrs Rodny's estate) (written submissions par 22).
It was submitted that Laurence used his power over Mrs Rodny to cause her to agree to Laurence receiving his father's half share in Karod (written submissions pars 231-237), and that he imposed upon Mrs Rodny to sell Carramar Avenue for the purpose of effectively disinheriting his nephews and nieces (written submissions pars 217-222).
The plaintiffs mounted a substantial case against Laurence based upon his alleged dominating and aggressive conduct towards them personally. They detailed in pars 139 to 159 what they alleged to have been Laurence's bad conduct towards the plaintiffs, and Jeannette's daughters, over their respective lifetimes. This campaign included allegations of Laurence teasing, provoking and abusing Jeannette beginning in childhood and continuing into adulthood.
The plaintiffs gave extensive evidence in support of these and other allegations, and called a phalanx of witnesses who gave episodic and opinionated evidence concerning Laurence's bad conduct.
In response, Laurence made some concessions but generally refuted the allegations that were made against him, particularly in respect of the proper complexion in which to regard his relationship with Mrs Rodny and the assistance that he gave to her in relation to her care and the management of her financial affairs.
Almost all of these matters were essentially irrelevant to the issues that call for determination in these proceedings. I will not review the evidence or attempt to resolve the forensic disputes in this area. Parties to litigation cannot expect courts to devote precious and limited time to resolve long-standing emotional disputes between parties that are not germane to the issues that the court is required to decide.
The plaintiffs made a number of specific submissions that were aimed more directly at the issues that the Court is required to decide.
The plaintiffs submitted that Mrs Rodny's frail physical condition and Laurence's aggressive and controlling conduct prevented Mrs Rodny from executing the 2008 will. In this respect they submitted that Laurence would have received the 15 August 2008 letter from Mr Lloyd enclosing the 2008 will, as he was opening all of Mrs Rodny's mail by this time: see written submissions par 164.
The plaintiffs added that "the only inference" from the fact that Mr Lloyd's file cover includes the name and address of Jeannette and not Laurence is that Mr Lloyd was instructed not to send the new will to 74 Balfour Road but rather to send it to Jeannette's address "given Laurence was controlling all of [Mrs Rodny's] mail at the time".
At par 196 of their written submissions, the plaintiffs submitted "that Laurence was aware of his mother's wills, including the 2008 Lloyd will and was doing everything within his power to prevent his mother from executing it".
It cannot be said that these allegations are in principle irrelevant to the question of whether Mrs Rodny intended the 2008 will to take effect as her will, but the Court could not entertain the making of positive findings to the effect submitted by the plaintiffs, unless the Court were prepared to act upon the basis of innuendo and suspicion, which it most definitely is not.
There is simply not the evidentiary basis for the Court to draw the inferences that would be necessary before these findings could properly be made.

[39]

Laurence's administration of Mrs Singer's estate

Much of Laurence's cross-examination was occupied by a detailed analysis of the manner in which Laurence administered the estate of his aunt, Mrs Singer, who died on 23 March 2008. Laurence and Mrs Rodny were named as executors under the will, but Mrs Rodny renounced probate. The object of the cross-examination appeared to be to try to establish that Laurence was so avaricious that the Court should be ready to accept that Laurence would be prepared to do or say whatever may be necessary to sustain the grant to him of probate of the 1997 will, because that will disproportionately benefited him when compared to Jeannette and her family.
In my view, the cross-examination established that Laurence was exceptionally parsimonious in the way that he administered his aunt's estate. He delayed distributing every gift made by Mrs Singer for substantial periods, even in the face of repeated written demands by the beneficiaries and advice from his solicitor that there was no impediment to him administering the estate in a timely way. This practice extended even to substantially delaying the payment of significant bequests that Mrs Singer had made to charities including, as I understand the cross-examination, the United Israel Appeal, the Sydney Talmudical College, the Central Synagogue and the Sir Moses Montefiore Jewish Home. Laurence's extreme tardiness persisted in the face of threats by lawyers to institute proceedings to replace him as executor. Laurence gave as his justification for his delay the spurious excuse that he wanted to retain the estate for at least 18 months to preserve against the possibility that eligible persons would apply for family provision relief. He gave that excuse notwithstanding that he had received advice from the estate's solicitors that the risk that such applications may be made did not justify delay in administering the estate. Laurence ultimately admitted that he did not make any payments of interest to any of the beneficiaries to compensate them for late payment of their legacies.
Laurence fended off demands from the German Consulate for repayment of pension payments made by the German government to Mrs Singer as a result of her treatment during the Second World War, which Laurence allowed to continue for some time after Mrs Rodny's death, with the result that the payments were only stopped when the German Consulate found out about Mrs Singer's death through its own sources. Laurence ultimately justified his conduct by acknowledging his antipathy to the German government as a result of what Germany had done to his family.
I found the following aspect of Laurence's evidence concerning his response to the German Consulate's request for repayment of pension payments made after Mrs Singer's death to be telling. It occurred in the course of questions that I put to Laurence (T-B 68.33-69.35): HIS HONOUR: … Q. Mr Rodny you've been asked certain questions about what has been called from time to time the German pension, is that right? A. Correct. Q. You were aware that for some time after your aunt's death that pension continued to be paid? A. Yes for a few months yes. Q. You always understood did you not that it was a payment by the German government in restitution for we do not know exactly what but circumstances in your aunt's life connected with the Second World War? A. Correct. Q. Could I ask you to look at page 77 of the folder please. This is an email from you to Mr Vesely [Laurence's solicitor] dated 14 April 2009 … I direct your attention to what follows: "I remind you that to date we have been unable to locate any paperwork in Mrs Singer's belongings relating to any 'German pension' and it would at this stage be merely an assumption that this is the nature of these payments." Why did you say that to Mr Vesely and what did you mean by it given that you always knew that this was a German restitution pension? A. Well I assumed - I assumed it was, I assume it was your Honour. Q. Were you not suggesting to Mr Vesely that the money in the account may have some source not related to a German pension? A. Sorry - sorry, can you-- Q. Sorry, maybe I've got too many "nots" there. What do you say about the suggestion that what you were putting to Mr Vesely was that this money may not in fact have been from a German pension? A. I'm not sure, I think I was just suggesting to him that, you know, we hadn't located any paperwork, you know, in relation to the nature of the payment. But I knew if it was a German pension or institution, and obviously if it was paid, continue to be paid after she passed away, would have to be refunded as indeed any pension would be. Q. I thought you always knew it was a German-- A. Well I knew it was from the German government but - and I assumed because I knew of similar payments to many other family members and friends, I assumed it was a restitution payment. But I also note that your Honour that the answer to the $90,000 that was in there as well, it was also asked around the same time which I couldn't recall.
I found the statement made by Laurence in the 14 April 2009 letter to his solicitor that suggested there was doubt about the source of the pension payments received by Mrs Singer to be disingenuous. Laurence knew full well that the payments came from the German government and any payments received after his aunt's death had to be repaid.
In gauging Laurence's credibility as a witness, it is necessary to take into account that in relation to almost all relevant issues Laurence could protect his position by simply denying that particular events occurred. Laurence was not required in any comprehensive way to make a positive case. It is relatively easy for witnesses to deny assertions of fact, and consequentially difficult for the cross-examiner to prove that the denial is false, unless some positive evidence that establishes that the witness knows that the denial is false happens to be available. Consequently, small matters that are inconsistent with the witness acting in a creditworthy way may be relatively important.
In this respect, the suggestion that Laurence made to his solicitor was false to Laurence's knowledge. This evidence goes further than the other evidence that is consistent with Laurence being parsimonious in his administration of his aunt's estate, and shows that Laurence was prepared to dissemble with his own solicitor, for the purpose of delaying if not defeating the German Consulate's effort to recover the over-payments of pension.
It also appeared to me that Laurence's response to the Court's questions was not candid, in that he did not readily concede that his instruction to his solicitor was not consistent with his own knowledge that the payments were pension payments by the German government.
Laurence's own interest in delaying the administration of his aunt's estate could only arise from the fact that he was likely to be a beneficiary of Mrs Rodny's estate, and she was a major beneficiary of Mrs Singer's will. Ultimately, Laurence, as executor of Mrs Rodny's estate, recorded her interest in Mrs Singer's estate as having a value of some $541,000. Delay by Laurence in the administration of his aunt's estate stood to benefit Mrs Rodny's share in the residue, because an amount of some $2,000,000 was on term deposit earning interest.
The solicitor appointed to represent Laurence in the administration of Mrs Singer's estate attempted to induce him to perform his duty in a letter dated 20 September 2010, by saying that: "Unless I get a better explanation from you, it is a gross neglect of your duty if all ("all" being underlined) had not been paid out by now". Laurence merely responded to this statement in cross-examination by saying: "That was his view" (T-B 63.43).
The solicitor's final statement concerning the matter, in a file note dated 17 March 2011, some three years after Mrs Singer's death was: "Laurence Rodny has not come back to us, nor returned my phone calls. I can only assume that he has gone elsewhere or is acting for himself. Good riddance, I can now put this file away. Please close file and put it to storage." Laurence's conduct as executor of his aunt's estate makes his solicitor's sentiment understandable, although the statement of that sentiment does not strictly prove anything of relevance.
The thrust of the cross-examination on Laurence's performance of his duty as the executor of his aunt's estate can perhaps be found in the suggestion put to him (T-B 62.36): "I suggest to you that there are two words that describe your motivations and your actions throughout this process. Control and money. Would you agree with that?" Laurence's response was: "Absolutely not".
In many ways, this aspect of Laurence's cross-examination is collateral to the issues that require determination in these proceedings. In response to an objection to a line of questions that formed part of this cross-examination, counsel for the plaintiffs said that the cross-examination went to Laurence's credit.
I do not think that in any direct way Laurence's conduct in the administration of Mrs Singer's estate could justify the Court in making any finding that Laurence had some propensity or tendency to act in an avaricious way that enhanced the likelihood that he had taken any particular step calculated to protect his entitlements under Mrs Rodny's 1997 will. Indeed, the plaintiffs have not identified in their case any specific actions they allege Laurence to have taken to which any tendency they sought to establish by their cross-examination could be applied.
I find, however, that Laurence's conduct in the administration of his aunt's estate was at the least very shabby and dishonourable, and his denials and attempts at justification were to his discredit, as his behaviour fell so far short of his duty, and his failure to act in accordance with the entreaties of his own solicitor, plainly called for frank concessions from Laurence concerning the unsatisfactory nature of the performance of his duty as his aunt's executor.

[40]

Whether Mrs Rodny saw Mr Lloyd to appease Mrs Parker

Laurence made a submission that there is a simple explanation for why Mrs Rodny did not execute the 2008 will, being that she had no real intention to change her 1997 will to make a replacement gift of property to her grandchildren, and that she only attended Mr Lloyd's office with Mrs Parker in order to appease Mrs Parker's entreaties that Mrs Rodny should make special provision for her grandchildren as had Mrs Parker.
In his further supplementary submissions, Laurence submitted that Mrs Rodny did not really want to sign the will. If she had been so anxious to do so, she could have done so on 15 August 2008 when she signed the appointment of enduring guardians. He submitted that the fact that Mrs Rodny wanted Mrs Parker to be present when she gave instructions to Mr Lloyd supports Laurence's assertion that Mrs Rodny was seeing Mr Lloyd to appease Mrs Parker who had been encouraging Mrs Rodny on behalf of Jeannette and Jeannette's children.
The primary source for this submission is par 9 of Laurence's 28 July 2016 affidavit, where he said: The so-called "2008 Will" was never signed and I knew nothing of it until my sister mentioned it after my mother's death. In about 2008 I had a conversation with my mother which included words to the effect: Mother: Mrs Parker (a friend of my mother) has been speaking to Jeannette who has been complaining and worrying that she's not going to get enough in my Will. I: That has nothing to do with me. You know I do not want to discuss your Will. It is up to you what you do with your money. Mother: Mrs Parker is nagging me to make changes to my Will, to give more to Jeannette. She wants me to go to her lawyer. But I told her I have only one lawyer and have always had only one lawyer. I: I do not want to talk about it. It is up to you. Mother: I might go with her, just to get her off my back. I: You know what you're doing. Whatever you do will be the right thing. Until my sister mentioned the fact of a Will prepared by another lawyer, I was unaware of whether my mother had in fact seen another lawyer.
Counsel for the plaintiffs challenged Laurence in cross-examination by putting to him that this conversation did not take place (T-B 101.15) but Laurence stood by his evidence.
Laurence was adamant that Mrs Rodny said to him that she was going to go to see Mrs Parker's lawyer "just to get her off her back", saying at T-B 101.16: "Absolutely, she did". I have found it strange that Laurence has claimed to remember this incident so definitely, given his repeated evidence that Mrs Rodny never otherwise discussed with him her testamentary intentions, or what was contained in her will.
I do not accept Laurence's evidence that he had this conversation with Mrs Rodny, or the submission that Mrs Rodny did not intend to sign the new will and only saw Mr Lloyd to give him instructions to draft the new will to appease Mrs Parker.
First, I consider Laurence's contention to be inherently implausible. A person's will is a fundamentally private matter, and an unlikely subject for unwonted intervention by Mrs Parker. There is no objective reason to think that Mrs Parker would have wanted to intervene in Mrs Rodny's family, or that she would have had a view that the equal division of Mrs Rodny's estate would have been inadequate provision for Jeannette and her family.
Secondly, I believe it would have been out of character for Mrs Rodny to have bowed to Mrs Parker, or if she did, that she would have deceived Mrs Parker, her very long time and close friend, in that manner.
Thirdly, it is improbable that Mrs Rodny would have wasted Mr Lloyd's time by intentionally misleading him as to her intention to make a new will.
Fourthly, if Mrs Rodny had intended only to appease Mrs Parker, she could easily have done so by telling Mrs Parker that she had made a new will in appropriate terms by going to her own lawyer. It is difficult to believe that Mrs Rodny would have thought that her old friend would not have believed her, and would have insisted upon Mrs Rodny being able to produce evidence of her new will.
Fifthly, the detail of the evidence undermines the probability that Mrs Rodny engaged in the elaborate charade that would have been involved in the implementation of the conversation given in Laurence's evidence. Mrs Rodny did go to Mr Parker's lawyer, notwithstanding her having allegedly said to Laurence: "But I told her I have only one lawyer and have always had only one lawyer". Mr Lloyd gave evidence, which I accept, that Mrs Rodny gave as her reasons for making a new will that she believed that Laurence had enough, and she wanted to correct the effect of the sale of the property that she had given to her grandchildren in an earlier will. They were entirely rational reasons for Mrs Rodny to decide to make a new will. It is not clear why Mrs Rodny would have gone to the trouble of providing those reasons to Mr Lloyd if she had no real intention to sign the new will. Furthermore, I accept the evidence of Mr Lloyd that Mrs Rodny told him that she did not want Mr Lipton to know about the new will. There is no reason why Mrs Rodny would have given that instruction if she had already raised with Laurence the possibility that she would see Mrs Parker's lawyer to get Mrs Parker "off her back".
Sixthly, the existence of Mr Lloyd's mysterious 2006 file also tends to undermine Laurence's claim that Mrs Rodny told him that she might visit Mr Lloyd only to appease Mrs Parker. It seems unlikely that Mrs Parker would have successfully badgered Mrs Rodny to see a solicitor to make a new will twice, and the fact that Mrs Rodny apparently did so on two occasions suggests that she had made her own mind up, even if she did not complete the task the first time. I also do not accept that Laurence's submission that Mrs Rodny executed the appointment of enduring guardians and not the 2008 will on 15 August 2008 supports a finding that Mrs Rodny never intended to sign the new will.
Finally, I have referred above to Mr Lipton's file note of his telephone conversation with Laurence after the conference on 9 December 2014 at which the 1997 will was read, in which Mr Lipton recorded that Laurence informed him of the possibility that there was a later will and that Jeannette had already called Mr Lloyd and been informed that Mr Lloyd prepared a will that was never signed. Laurence asked Mr Lipton to write to Mr Lloyd, presumably for confirmation. It is of some significance that Laurence did not apparently inform Mr Lipton that Mrs Rodny told him at the time that she did not intend to sign the will, but only visited Mr Lloyd to appease Mrs Parker.
The fact that I have been unable to accept Laurence's evidence about Mrs Rodny only going to Mr Lloyd to appease Mrs Parker undermines Laurence's credibility, given the significance of the invention of such evidence.

[43]

The parties' contentions

The plaintiffs ask the Court to find that, at some time relatively soon after Mrs Rodny visited Mr Lloyd in August 2008 she informed Jeannette and Avi that she had made a new will in which, among other things, she had left No 102 Balfour Road to her grandchildren. They also ask the Court to find that Mrs Rodny told Laurence that she had made a will that had that effect, and that Laurence complained of Mrs Rodny's decision to Mr Price. They submit that Mrs Rodny must have been referring to the 2008 will (being in the terms of the document in the final form produced by Mr Lloyd on 15 August 2008), because that was the only document containing all of her testamentary intentions that the evidence shows was created at the time.
The submission that Mrs Rodny intended to make a will in the terms of the 2008 will, because she said that she had made a will that could only have been intended to be a reference to that will, is the crux of the plaintiffs' case.
The plaintiffs did not abandon their case that Mrs Rodny gave Mr Lloyd instructions that were incorporated into the final draft of the 2008 will with the definite intention to make that document her final will by executing it, but she was prevented from executing the document by illness and perhaps conduct on the part of Laurence.
However, the case that Mrs Rodny made statements that she had made a new will is consistent only with Mrs Rodny actually having executed the document or forming a belief that she had done so when she had not. That case is not consistent with Mrs Rodny having intended the 2008 will to operate as her will when she knew that she had been prevented by circumstances from executing it. Acceptance by the Court of the evidence that Mrs Rodny made the statements that she had made a new will would rule out acceptance of the alternative case, which is one aspect of the case that the plaintiffs pleaded, as I have explained above. As the plaintiffs also alleged in par 12 of the amended statement of claim that Mrs Rodny told Avi that she had changed her will, it may be that aspects of the plaintiffs' pleading were inconsistent.
I have considered above in detail the circumstances that flowed from Mr Lloyd being subpoenaed to give evidence and his subsequent production of additional documents held by his firm. It seems that the plaintiffs initially took Mr Lloyd's statements in late 2014 and early 2015 on faith and, believing that Mrs Rodny must not have executed the 2008 will, pleaded their claim on the basis of s 8 of the Succession Act. However, the effect of Mr Lloyd's evidence and the documents that he produced was to multiply the possibilities beyond those which the plaintiffs were able to apprehend when they were relying upon the statements made by Mr Lloyd.
Materially, the possibility emerged that Mrs Rodny may have signed the 2008 will but it has been lost. Mrs Rodny could have signed the 2008 will in a number of circumstances. It is also possible that Mrs Rodny could have signed the incorrect first draft of the 2008 will, not understanding that it did not fully represent her instructions. That possibility may be quite unlikely. Mrs Rodny could have formed a mistaken belief that she had signed the 2008 will as a result of the events of 14 and 15 August 2008. There is good reason to believe that something positive was intended to be done on 3 September 2008 in respect of the signing of the 2008 will, but there is absolutely no evidence of what happened on that date.
The effect of these developments was that the plaintiffs responded to the evidence that emerged by reformulating the way in which they put their case by relying upon the various alternative courses of events that were consistent with Mrs Rodny having made statements that she had made a new will in circumstances where she could only have been referring to the 2008 will.
The most significant feature of this reformulation was that the plaintiffs' case ceased to be limited to a case where the plaintiffs asserted that Mrs Rodny made an informal will that she had not executed that is effective by operation of s 8 of the Succession Act, but it extended in the alternative to a case that Mrs Rodny had actually made a will in terms of the 2008 will but the document has not been found.
The distinguishing feature of this case is that the evidence is arguably consistent with each of these cases being valid, but it does not permit a finding that one of the cases is valid to the exclusion of the other. Thus, the plaintiffs' case expanded to be a claim that the Court should grant probate of the 2008 will upon being satisfied that Mrs Rodny had stated that she had made a will in those terms either because she had executed that will and it has not been found, or because she had the necessary intention that the document operate as her will for the purposes of s 8 of the Succession Act, in circumstances where Mrs Rodny may have been mistaken, or prevented from executing the document.
Laurence accepted at par 5.33 of his outline written submissions in response to the requirements of s 8 of the Succession Act, as expounded by Powell JA in Hatsatouris, that the 2008 document is both a document and embodies Mrs Rodny's testamentary intention. He denied, however, that Mrs Rodny intended the document to operate as a will.
Laurence's case, as expounded in subsequent paragraphs of his written outline and his supplementary submissions, was that there is no evidence that Mrs Rodny ever adopted (or even saw or read) the August 2008 document. The 2008 document was created after Mrs Rodny had left the office of Mr Lloyd. Laurence further submitted that, while Mrs Rodny may have spoken to various persons about her intention to see a solicitor, there were no discussions after the event whereby she unequivocally referred to a will or adopted the contents of a document she had either seen or a document she had not seen. If Mrs Rodny had wanted to pursue the 2008 draft will, she could have done so. There is no evidence that the draft will was received by Mrs Rodny, or, if received, what she did with it. Laurence submitted that the fact that Mrs Rodny executed the appointment of enduring guardians, but there is no evidence that she executed the 2008 will, demonstrates her ability to appreciate what she wanted and did not want to sign. Laurence submitted that although Mrs Rodny was admitted to the Wolper Hospital on 16 August and discharged on 28 August 2008, and then not admitted again until 16 September 2008, during this period she had physical disabilities but was otherwise alert and oriented. Mrs Rodny could have executed the 2008 will at any time, even by requesting Mr Lloyd to attend upon her in hospital, or by arranging for Avi to drive her to see Mr Lloyd after she was discharged from hospital. Laurence submitted that there was not a scintilla of evidence that Mrs Rodny executed the 2008 will on 3 September 2008 at the time of the appointment on that date in Mr Lloyd's electronic diary. Laurence submitted in relation to many aspects of the evidence that they were all matters of speculation which can go no further and which cannot be turned into positive facts.
Laurence made the further specific submission in par 45.1 of his supplementary submissions that the fact that the plaintiffs cannot be precise as to the "iteration" of the 2008 will that constitutes the document for the purposes of s 8 of the Succession Act demonstrates the vagueness of the evidence and is wholly inconsistent with the certainty expected of a probate court.
Laurence's submission that there was not a scintilla of evidence that Mrs Rodny executed the 2008 will on 3 September 2008 at the time of the appointment on that date in Mr Lloyd's electronic diary is consistent with my understanding that Laurence was responding to the plaintiffs' expanded case that Mrs Rodny may in fact have signed the 2008 will but that it has not been found. Further, the whole of the dispute as to whether or not Mrs Rodny told Jeannette, Avi and Laurence that she had made a new will introduced the possibility that she had done so.
It may be that the plaintiffs should have appreciated the consequences of the advent of Mr Lloyd's evidence and the additional documents that he produced and applied for leave to amend their pleadings to conform with the expanded case that they developed in response to that evidence. However, Laurence did not submit that any aspect of the claims that the plaintiffs made in their final submissions should be rejected on the ground that it was outside their pleadings. That is consistent with my own understanding of the manner in which the parties conducted the case, which involved them all responding to the unexpected consequences of Mr Lloyd's evidence.

[44]

Relevant legal principles

I will consider first the principles that govern the application of s 8 of the Succession Act.
The plaintiffs submitted that the "legal principles are well established (written submissions par 254) and Laurence said that the principles were "not in dispute" (written outline par 5.25). The plaintiffs looked primarily to the judgment of Hallen J in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 at [259],[260], [280] and [284], while Laurence cited The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856, in which Kunc J extracted and accepted substantial portions of the judgment in Angius.
It is well established that the authorities that have considered the application of the precursor to s 8 of the Succession Act, s 18A of the Probate and Administration Act 1898 (NSW), are also applicable to the application of s 8: see for example Angius at [240], [243] and the decision of Slattery J in Yazbek v Yazbek [2012] NSWSC 594 at [77].
It has been accepted in many authorities that the starting position for the proper application of s 18A (and hence s 8 of the Succession Act) is the following statement of principle by Powell JA (with whom Priestley and Stein JJA agreed) in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]: [56] It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s18A are essentially questions of fact, the particular questions of fact to be answered being: (a) was there a document, (b) did that document purport to embody the testamentary intentions of the relevant Deceased? (c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will? (see, for example, The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray Powell J, 19 June 1992 (unreported)).
The reference by Powell JA to the expression "a document" and to "the subject document" naturally applies where there is only one candidate for the document the subject of the deceased's testamentary intention. That language is capable of supporting a conclusion that it is necessary to be able to identify the precise document that was the subject of the deceased's testamentary intention. However, the language may also reflect the fact that in most cases there will only be one candidate to be that subject. There is also a question of whether, where his Honour used the words "without more" he was directing his attention only to the need for an intent on the part of the deceased that the document immediately operate as a will, rather than that there is a need for the intention to act upon a single, identified document.
I, like Kunc J in Drummond, also respectfully adopt and apply the summary of the law in relation to s 8 which appears in the judgment of Hallen J in Angius: [250] The burden of proof of all issues relating to s 8 is on the Plaintiff and is to be satisfied on the balance of probabilities. In deciding whether it is so satisfied, without limiting the matters that may be taken into account, the court is required to take into account that these are Probate proceedings (the nature of the cause of action); that the size of the estate is substantial (the nature of the subject matter of the proceeding); and the significant difference between the two documents (the gravity of the matters alleged): s 140 Evidence Act 1995. [251] In this regard, however, there can be no doubt, and the parties agree, in the present case, that the undated document: (i) Is a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them. (ii) Was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution "is the validation of a document by going through the formalities required by law for that purpose": Estate of Williams (dec'd) (1984) 36 SASR 423, at 425. (iii) Purports to state the testamentary intentions of the deceased. … [255] In Yazbek v Yazbek, Slattery J said, at [83]: Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems … to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestley JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after … death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA. [256] There is an additional element to be established by a Plaintiff. That is, for a document to be declared to be a testamentary instrument pursuant to s 8 of the Act, it is not sufficient that it purports to state only the deceased's testamentary intentions. Relevantly to this case, the deceased must also have intended the document to form her Will. [257] Thus, in this case, for the undated document to be admitted to probate, the Plaintiff must establish, on the balance of probabilities, that deceased intended that it operate as her Will; that is, it was intended by her to govern the disposition of her property, or some of it, after her death. … [263] In Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, White J, at [17], noted, also: Section 8 permits part of a document to form a deceased person's will if it states his or her testamentary intentions and the person intended that part of the document to operate as his will. The intention that the document, or part, form the person's will may, and usually will, exist at the time the document is brought into existence. But the section may also be satisfied if the deceased subsequently forms the intention that the document, or part, have a present operation as the deceased's will. (See Bell v Crewes [2011] NSWSC 1159 at [25] citing Application of Kencalo; In the Estate of Buharoff; and Mr Justice Powell, " Recent Developments in New South Wales in the law relating to wills " (1993) 67 ALJ 25 at [38]). … [265] In Deeks v Greenwood [2011] WASC 359, E M Heenan J, referred to the use, in some of the cases, of the phrase "without more". He wrote, at [71]-[73]: The question of whether or not the document was intended to take effect as the testator's will without more plainly emphasises that it needs to be established that it embodies the final expression of testamentary intentions upon which the testator was at the time resolved, and that it should not be tentative, advisory or prepared in the anticipation that it may need revision, further thought or final confirmation. That is consistent with principle and with the statute but the phrase, not found in the legislation itself, is capable of suggesting that if anything more is required for the paper to take effect as a will it could not be valid even as an informal will . With respect, I am satisfied that this is not what was intended by his Honour's observations in Oreski v Ikac … … Clearly enough, a will prepared by a solicitor, or any will in conventional form contemplating execution with the formalities and requirements provided for by s 8 of the Wills Act, suggests that formal execution will follow and that the testament will thereupon be the will of the testator unless revoked or amended by a subsequent will or codicil or otherwise. However, this does not necessarily mean that such a document prepared for execution and submitted to the testator is incapable of being accepted as an informal will if it nevertheless embodies the testator's settled testamentary intentions. There are obviously cases, such as Mitchell v Mitchell, where the evidence establishes that the deceased had formed settled testamentary intentions to be expressed in his will and had adopted a particular document as embodying them notwithstanding that, for some sudden and unexpected reason, the document was not executed or properly executed. Nevertheless, such cases can present difficulties because if, as is often the case, a proposed will is prepared on instructions given by a testator and then sent by the solicitors to the testator for consideration or, as here, marked plainly with the word "Draft", that implies that the document may be for consideration, further thought or revision and is still awaiting the expression of the final settled intention of the intended testator. Those are instances in which the document clearly is only a preliminary, tentative or provisional expression of testamentary intention and where it is clearly contemplated that the final decision by the testator whether to adopt its terms or to vary them needs to be made. Those are the features which led to the rejection of the attempt to prove as informal wills the documents being propounded in The Estate of Perriman (dec'd) and in Oreski v Ikac. [266] Recently, Habersberger J considered the authorities on this topic in Fast v Rockman [2013] VSC 18. His Honour concluded, at [113]-[116]: In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstance which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed. Like Murray J in Dolan v Dolan, I consider that the words "without more" have been mentioned by way of emphasising that the court must be satisfied that the deceased really did intend the terms of the document - "without any alteration or reservation" - to be the manner in which his or her property was to be disposed of upon his or her death. Or as EM Heenan J put it in Mitchell v Mitchell, the words "without more" were used in Oreski v Ikac: … to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. In my opinion, the insistence by counsel for Mrs Rockman that an unsigned will could never be held to be an informal will under s 9 if a deceased intended to sign a document and thereby to make it his or her will but died before signing it, has rather surprising consequences. Probably the best illustration of this is the following situation. The deceased had read the will prepared by his solicitors on his prior instructions, announced to those present that it was what he wanted in his will and that he was going to sign it, picked up a pen and as he was about to sign collapsed and died from a massive heart attack. The argument by Mrs Rockman's counsel would result in the document about to be signed by the deceased in the above hypothetical situation not being admitted to probate because he still had more to do before it could be recognised as his will. That cannot be correct, in my opinion. As pointed out by Kirby P in Re Masters, Hill v Plummer a too rigid insistence on the formalities or other characteristics necessary to constitute a document the deceased's will defeats the purpose of a provision such as s 9 to allow a document to be admitted to probate as an informal will where the court is satisfied that the deceased intended that document to be his or her will. … [268] In determining whether the court is satisfied that the deceased person "intended the document to form his, or her, will", the court may, in addition to the considering the form and content of the document or part of it, have regard to, amongst any other matter, (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person..
It is also necessary to bear in mind the following statement as to the standard of proof required in cases such as the present given by Hodgson J (as his Honour then was) in In the estate of Ralston, 12 September 1996, Supreme Court of New South Wales, unreported (BC 9604329), as accepted by Campbell J (as his Honour then was) in Cahill v Rhodes [2002] NSWSC 561 at [56]: [56] In In the Estate of Ralston (Supreme Court of NSW, 12 September 1996, unreported) Hodgson J dealt with the standard of proof applicable in such cases as follows: "... there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way (see, for example, Pukallus v Cameron 56 ALJR 907 at 911; Blackney v Savage and Sons (1973) VR 385 at 389; Maks v Maks 6 NSWLR 34 at 36; Whittet v State Bank of NSW 24 NSWLR 146 at 151-154), or where the Court is asked to make a finding concerning a legal transaction by a deceased person (see, for example, Birmingham v Renfew 57 CLR 666 at 674, 681-682). However, this does not mean that what is required is other than proof on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate: cf my article 'The Scales of Justice - Probability and Proof in Legal Fact Finding' (1995) 69 ALJ 731 esp at 739-740."
In determining the intentions of the deceased for the purpose of applying s 8 of the Succession Act, it is now legitimate for the Court to take into account evidence of the deceased's own statements concerning the deceased's intentions: see Cahill v Rhodes [2002] NSWSC 561 at [70]-[71]: [70] S18A(2) of the Wills, Probate and Administration Act 1898 has allowed evidence of statements made by a deceased person as to the manner of execution of his or her Will, or his or her testamentary intentions, to be admissible for the purpose of deciding to admit an informal Will to probate, or to admit the informal document as an amendment to a previous Will, or to treat the informal document as a revocation of a previous Will. Though s18A(2) had been enacted at the time of the decision in Whiteley v Clune (No2) it supplemented, rather than replaced, the common law. Further, s18A(2) did not cover the entire range of evidence which could be admitted to prove the contents of a lost Will. Prior to the introduction of the Evidence Act 1995, the common law rules which Powell J laid down in the fourth paragraph which I have quoted above, would have applied to decide the admissibility of evidence of a lost Will in those circumstances where s18A(2) of the Wills, Probate and Administration Act 1898 could not be pressed into service. [71] Since the Evidence Act 1995 has been introduced, however, proof of the contents of documents (including lost Wills) must accord with that Act. S51 abolishes "the principles and rules of the common law that relate to the means of proving the contents of documents". S48 to s50 of the Evidence Act 1995 set out the requirements of that Act for proof of documents. In the case of a lost Will, the relevant provision would be s48(4)(b) which provides: "(4) a party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: ... (b) adducing oral evidence of the contents of the document in question."
Section 8(3)(b) is the provision in the Succession Act that authorises the Court to have regard to any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, for the purpose of deciding whether the deceased person intended a document to form his or her will.
Finally, it is necessary to treat s 8 of the Succession Act as remedial legislation intended to avoid the real testamentary intentions of deceased persons being thwarted by the application of formal rules concerning the validity of wills, which may have the effect of causing the courts to decline to grant probate of documents genuinely intended by the deceased to operate as the deceased's will. As Hallen J noted in Angius: [244] In Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA, at 462, wrote: Secondly, s 18A should, as I have indicated, be given a beneficial application. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion. … [247] Slattery J in In the estate of O'Dell [2010] NSWSC 678, wrote at [33], that "Succession Act s 8 should not be applied with too stringent a requirement of proof that a propounded document otherwise clearly embodying the testamentary intentions of the deceased does constitute his will" citing Kirby P in Re Estate of Masters; Hill v Plummer, at 452V. [248] These passages should not be taken to mean, however, that the statutory formalities enshrined in the Act are to be unduly relegated in importance: Belcastro v Belcastro [2004] WASC 111, at [6]; Estate of Peter Brock [2007] VSC 415; (2007) 1 ASTLR 127, at [20].
In-so-far as it is now necessary to consider the principles that govern the grant of probate in respect of lost wills, I take those principles to be as stated by Austin J in Payten v Perpetual Trustee Company [2005] NSWSC 345, where his Honour followed the decision of Campbell J in Cahill v Rhodes. Austin J said: [83] Great cases such as Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 have established a doctrine, under the Wills legislation prior to the introduction of s 18A, by which the Court will recognise a lost will and admit it to probate. In Curley v Duff (1985) 2 NSWLR 716, Young J (as the Chief Judge in Equity then was) summarised the ingredients that must be present as follows (at 718-9): As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will (see Re Molloy [1969] 1 NSWR 400), secondly, it must be shown that that will revoked all previous wills, thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome (see Allan v Morrison [1900] AC 604), fourthly, there must be evidence of its terms, and fifthly, evidence of due execution (see Gair v Bowers (1909) 9 CLR 510). [84] His Honour was speaking before the enactment of s 18A, at a time when the formalities prescribed for the making and revocation of wills were not subject to any such exception. The application of the doctrine of lost wills in a statutory environment which recognises the informal written expression of testamentary intentions requires modification of Young J's five requirements. Campbell J made the adjustment in Cahill v Rhodes [2002] NSWSC 561 (10 July 2002). He said (at [55]) that the five modified ingredients are as follows (I have highlighted the modifications): First, it must be established that there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous wills; third, the presumption that when a will is not produced it has been destroyed must be overcome; fourth, there must be evidence of its terms; and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will. … [87] I respectfully agree with Campbell J's formulation of the modified lost wills doctrine. The question is whether the five ingredients have been satisfied here.
These decisions were followed by Jagot AJ in Clines v Johnston [2008] NSWSC 524 at [5]-[10].
It thus appears from the modified fifth requirement that the introduction of the statutory modification to the common law now found in s 8 of the Succession Act has changed the principles governing lost wills in that it is no longer necessary for the party propounding the lost will to prove that it was duly executed before it was lost, and it will be sufficient to prove that the deceased person intended the document to constitute his or her will and that the document has been lost.

[46]

The statements of testamentary intention by Mrs Rodny

First, I find that the evidence establishes on the balance of probabilities that Mrs Rodny did tell Jeannette, Avi and Laurence that she had made a new will and that an effect of that will was to leave 102 Balfour Road to Mrs Rodny's grandchildren.
When Mrs Rodny made statements to that effect, the subject of her belief that she had executed a new will was the 2008 will, although for reasons that I will explain below, I cannot identify on the balance of probabilities the specific document that Mrs Rodny had in mind when she made those statements. The evidence establishes that, at the time Mrs Rodny made her statements, the 2008 will conforming to her instructions to Mr Lloyd was the only candidate subject of her belief.
I have made this finding, in the first instance, because I have preferred the evidence given by Mr Price to the evidence given by Laurence, for the reasons I have explained above concerning the statements made by Laurence as to what he had been told by Mrs Rodny about how she understood she had made provisions for the disposition of her estate under her will.
I consider that a consequence of my acceptance of Mr Price's evidence on this subject is that it provides support for a finding that more likely than not the statements that Jeannette and Avi said were made by Mrs Rodny to them during the kitchen discussion at Mrs Rodny's house were in fact made by Mrs Rodny. As I have explained above when considering the evidence given by Jeannette and Avi, there are reasons for the Court to approach that evidence with caution, but I have not rejected the evidence on the basis that it was not honestly given or lacks any credibility. On the contrary, I considered Jeannette and Avi to be basically honest witnesses, whose evidence required satisfactory external support before it was accepted by the Court.
The evidence is that Mrs Rodny initially did not want Laurence to find out about her new will, and nothing is disclosed about the circumstances that led her to discuss the will with Laurence. In my view, if Mrs Rodny decided to discuss her will with Laurence, it is relatively probable that she would have told Jeannette and Avi what she had done. In the manner that I have explained above, Jeannette and her family had relied upon Mrs Rodny's support for a considerable period, and Mrs Rodny had given that support in a consistently loving and generous way. As the evidence establishes that Mrs Rodny went to Mr Lloyd for the purpose of making a new will to ensure that her grandchildren were provided for, it is in my view consistent with the evidence of Mrs Rodny's character that she would have informed Jeannette and Avi of what she had done in order to obviate any worry that they may have had about the future of their children.

[47]

Events leading up to the instructions for Mrs Rodny's new will

Secondly, for the reasons that follow, I find that, when Mrs Rodny gave her instructions to Mr Lloyd on or about 14 August 2008 in terms that were ultimately incorporated by Mr Lloyd in the final draft of the 2008 will, Mrs Rodny had a definite intention to execute a will in the terms of that document. Had Mr Lloyd taken a proper note of his instructions and prepared the final version of the 2008 will in accordance with Mrs Rodny's instructions, ready for that document to be executed at the same time as Mrs Rodny signed the appointment of enduring guardians on 15 August 2008, I am satisfied that Mrs Rodny would have executed the will on that occasion.
As I have recorded above, I reject Laurence's submission that Mrs Rodny only visited Mr Lloyd and gave instructions for the making of a new will in order to appease Mrs Parker. I also reject Laurence's evidence of his conversation with Mrs Rodny that supports the submission.
A number of events and circumstances that pre-dated Mrs Rodny's instructions to Mr Lloyd have significance to the question whether Mrs Rodny in fact intended to make a will in the terms of the 2008 will.
The evidence establishes that Jeannette suffered significant medical and psychological disabilities during her life and Joel and Alexander also developed medical disabilities that have been explained in outline above.
Historically, Jeannette and her family experienced significant difficulties in financing the needs of the family from its own resources.
Over the years Mrs Rodny provided an exceptional level of emotional and financial care and assistance to Jeannette's family, to a substantially higher level than would commonly be required of parents.
Although the question of Laurence's wealth was not explored in the evidence in any detail, the case was fought on the basis that Laurence has been successful in business and is independently wealthy. At the least, Laurence has not needed to call upon the financial assistance of his parents in the same manner as has Jeannette and her family.
So far as the evidence discloses, Mrs Rodny made a will dated 15 May 1990, by which she broadly divided her estate equally between her two children. By a will dated 17 June 1997, Mrs Rodny gave the property at Carramar Avenue to be held on trust for such of her grandchildren as survived her. The balance of her estate was divided between her two children. Mrs Rodny's will made on 19 December 1997 continued the gift of Carramar Avenue to the grandchildren, provided they survived Mrs Rodny and attained the age of 25 years. At the time of the wills made in 1997, Mrs Rodny had a clear intention to provide one of her properties to be divided between her grandchildren.
The gift of Carramar Avenue was adeemed at the time of its sale in 2003. From that point, Mrs Rodny had made no continuing provision for her grandchildren.
In August 2008, Mrs Rodny determined to see Mr Lloyd for the purpose of making a new will. Mr Lloyd was apparently chosen because he was the solicitor for Mrs Parker, Mrs Rodny's close friend of many decades.
At the time Mrs Rodny decided to make a new will, she was 86 years of age. The fact that she arranged to visit Mr Lloyd and attended his office on what the evidence suggests was two occasions on 14 and 15 August 2008 demonstrates that she was committed at the time of her visits to making the new will.
In his oral evidence, Mr Lloyd said that Mrs Rodny informed him that she believed that Laurence already had enough money, and that she wanted to substitute a property in her new will to be given to her grandchildren for a property that had been given to them in an earlier will but had been sold.
Mrs Rodny had an understandable reason to make a new will for the benefit of her grandchildren, and to reverse the effect of the ademption of the gift to those beneficiaries that she had made in her two 1997 wills. It is a natural conclusion to draw from the steps taken by Mrs Rodny to give her instructions to Mr Lloyd, and her attendances upon him at her advanced age, that she had a definite intention to make a will in the terms of her instructions.

[48]

The events following Mrs Rodny's instructions to Mr Lloyd

The evidence of events from the point when Mrs Rodny gave her instructions for the drafting of a new will to Mr Lloyd does not permit confident findings, even if only on the balance of probabilities, as to what happened between that time and 3 September 2008 in relation to how Mrs Rodny came to think that she had made a new will in the terms of the 2008 will. There are too many possible findings and inconsistencies in the evidence to enable the Court to make reliable findings of fact.
The starting position is my finding that had Mr Lloyd prepared a draft that accorded with Mrs Rodny's instructions, she would have executed a will in those terms when she was at Mr Lloyd's office. The finishing position is my finding that Mrs Rodny told Jeannette, Avi and also Laurence that she had made a will that on the evidence could only be the 2008 will. It is the question of how Mrs Rodny formed the belief that she had made a will in terms of the 2008 will which is the question that cannot be answered by a finding on the balance of probabilities as to a single chain of events.
My consideration of the evidence has led me to the view that it would be wrong for the Court simply to consider each possible event in chronological order, to determine on the balance of probabilities whether that event occurred, and in the light of that finding to make a similar determination in respect of the following chain of possible events, thus leading to a single finding as to what the actual chain of events was. The possibilities in the present case are not linear, and what actually happened might represent a chain of events whose individual components might not appear to the Court more likely than not to have happened. Many of the possibilities are sufficiently likely that the Court should accept the likelihood that they could have occurred given the uncertainties that arise out of the evidence.
In considering these possibilities, it will be necessary for the Court to revisit to some extent the observations that have been made above when considering the evidence given by Mr Lloyd and the documents that he produced to the Court.
The first choice that arises for consideration is whether (a) as Mr Lloyd claimed, he saw Mrs Rodny once on 15 August 2008, he prepared the first draft of the 2008 will with the intended clause 6 omitted, noticed the error, prepared the final draft of the 2008 will, and then sent it under cover of the 15 August 2008 letter to Mrs Rodny for confirmation that it accorded with her instructions. Alternatively, (b) did Mrs Rodny give her instructions to Mr Lloyd on or before 14 August 2008 with the intention that she would return the following day to execute the will, the first draft was prepared in error by Mr Lloyd, Mrs Rodny returned on 15 August 2008 and signed the appointment of enduring guardians, but in some manner the error in the draft will was discovered, so that the second draft had to be prepared, and that draft was sent to Mrs Rodny under cover of the 15 August 2008 letter. There may be variations to each of these alternatives.
Apart from alternative (a) being consistent with Mr Lloyd's memory, it accords with the fact that, as between the first and second draft of the 2008 will the date 15 August 2008 has been deleted, and it also accords with the terms in which the 15 August 2008 letter was drawn. The wording of the 15 August 2008 letter suggests that the draft will that was enclosed was prepared on the basis of Mrs Rodny's instructions and had not been seen by her before the time when she would receive the letter.
However, for the reasons that I have given above, I have not found Mr Lloyd's oral evidence to be reliable. There has been no suggestion that Mr Lloyd's electronic file was unreliable, and it established that the 2008 will was first drafted on 14 August 2008, and that the appointment of enduring guardians was drafted on 15 August 2008. Both documents were dated in the same way, in that the date 15 August 2008 was typed into the documents. As Mrs Rodny must have given instructions for the will before it was drafted, and as she had an appointment to see Mr Lloyd and signed the appointment of enduring guardians on 15 August 2008, Mrs Rodny must have seen Mr Lloyd on two occasions, probably on 14 and 15 August 2008.
Consequently, alternative (b) is the more likely of the two alternatives to be correct.
In coming to this view, I have rejected the speculations made by Mr Lloyd in his evidence that 15 August 2008 was not typed into the first draft of the 2008 will because, at the time it was prepared, Mr Lloyd expected Mrs Rodny to sign the will on that date. I also reject Mr Lloyd's speculation that, notwithstanding that the appointment of enduring guardians signed by Mrs Rodny has the typed date 15 August 2008 Mrs Rodny may actually have signed the document on some different and later date. I reject the speculation that the 2008 will was not expected to be signed on 15 August 2008, because I cannot understand why Mr Lloyd or his secretary would have typed the date in the will if the arrangement was intended to be open-ended as to when Mrs Rodny would return to execute her will. It is improbable that whoever prepared the draft will would have guessed at a date, or inserted a date that was likely to be the wrong one, with the necessary consequence that the draft will would have had to be amended before it could be executed. The same reasoning applies to the appointment of enduring guardians. As the appointment of enduring guardians was prepared containing the date 15 August 2008, and as Mr Lloyd's electronic diary shows that Mrs Rodny had an appointment on that date, it is likely that she signed the document on that date. If she signed it on a later date, then whoever supervised the signing did not correct the date when the signing took place. I will mention below the possibility that, contrary to the view that I prefer, the appointment of enduring guardians was signed on 3 September 2008.
My preference for alternative (b) as the explanation of what happened on 14 and 15 August 2008 does not, however, resolve all of the anomalies in the evidence.
It is a problem that the evidence does not in any specific way establish what happened concerning the circumstances in which the error in the first draft of the 2008 will was discovered, by whom it was discovered, and what was said to Mrs Rodny on the subject. Further, there remains the problem that the terms in which the 15 August 2008 letter were written are strongly consistent with the author of the letter believing that not only had Mrs Rodny not signed the 2008 will, but that she had not yet seen it, and needed to confirm whether or not it accorded with her instructions.
Mr Lloyd's evidence was firm that he, rather than Mrs Rodny, discovered the error. While I am not inclined to rely upon Mr Lloyd's recollection, his evidence on this subject could well be correct. If it is correct, the question arises as to when Mr Lloyd discovered the error. There is no evidence on that subject.
I would infer that the first draft of the 2008 will and the appointment of enduring guardians were prepared by Mr Lloyd before Mrs Rodny arrived on 15 August 2008 to sign the documents. If the error in the 2008 will was discovered before Mrs Rodny arrived, it would surely have been corrected immediately so that she could sign both documents together. It would have been a relatively trivial exercise for Mr Lloyd or his secretary to insert the necessary clause 6 and print out a new draft of the 2008 will. That apparently did not happen. Mr Lloyd did not provide any explanation as to why it would have been necessary to defer the preparation of a new draft will and to send it to Mrs Rodny, and require her to make another attendance upon Mr Lloyd for the purpose of signing the document.
Further, if the error in the first draft of the 2008 will was discovered before Mrs Rodny arrived in Mr Lloyd's office, then surely the consequences would have been discussed with her while she was present. If that had happened, the terms of the 15 August 2008 letter would not be apt in-so-far as they imply that Mrs Rodny had not yet seen a draft of her will.
If the error in the first draft of the 2008 will was discovered after Mrs Rodny left Mr Lloyd's office on 15 August 2008, so that it was too late for the error to be corrected and the will signed while Mrs Rodny was at the office, the question arises as to what happened at the time Mrs Rodny signed the appointment of enduring guardians. The most obvious answer is that she would have signed the first draft of the 2008 will in ignorance of the fact that it contained an error by reason of the omission of the gift of the shares in Karod to Laurence.
While the natural expectation would be that Mrs Rodny would have signed both documents at the same time, it must be acknowledged that Mr Lloyd's file did not contain a copy of the first draft of the 2008 will signed by Mrs Rodny.
So far as the apparent inconsistency of the wording of the 15 August, 2008 letter with likely earlier events is concerned, it must be remembered that the letter did not contain a file number, and Mr Lloyd said that his secretary always included a file numbers in letters when she typed letters for him. May someone else in the office, who was not entirely au fait with what had happened, have been the author of the 15 August 2008 letter? The answer cannot be known.
I conclude from these considerations that it is possible that Mrs Rodny signed a version of the 2008 will at Mr Lloyd's office on 15 August 2008, albeit that the document signed was not consistent with her instructions to Mr Lloyd. No positive finding can be made as to that fact, and it must remain no more than a mere possibility. Further, it is possible, given the fact that Mrs Rodny signed the appointment of enduring guardians, and the evidence is quite uncertain as to when the error in the first draft of the 2008 will was discovered, and whether Mrs Rodny was told anything about the error, that Mrs Rodny may have become confused as to what documents she had signed on 15 August 2008.
The next set of alternatives that must be considered arises out of the possibilities that the 15 August 2008 letter was or was not posted from Mr Lloyd's office to Mrs Rodny. This is plainly an important question, because the course of events that could follow the occurrence of each possibility would differ significantly from the other.
One reason that this question is important is that Mr Lloyd plainly assumed that the letter had been posted and received by Mrs Rodny, and he concluded on the basis of what he said was Mrs Rodny's failure to respond that Mrs Rodny had changed her mind and had not executed the 2008 will.
That caused Mr Lloyd in late 2014 to advise Jeannette and Mr Lipton that Mrs Rodny had not signed the will. Mr Lloyd's statement to that effect to Jeannette when she called him on 9 December 2014 may have been the cause of the doubt expressed by Jeannette when she telephoned Mrs Lipton and said that it was not clear whether Mrs Rodny had signed the will.
As I have observed above, it appears that the plaintiffs' pleaded probate claim was based upon an acceptance of Mr Lloyd's advice that Mrs Rodny had not signed the 2008 will, and the plaintiffs appear to have initially accepted from the fact that the file copy of the 15 August 2008 letter appeared in Mr Lloyd's file that it was sent to Mrs Rodny.
Yet it emerged unexpectedly at the hearing that there was no proof that the letter had been posted to Mrs Rodny, and some positive reason to conclude that it had not been so posted.
The plaintiffs ultimately invited the Court to find that, on the balance of probabilities, the 15 August 2008 letter was not posted out of Mr Lloyd's office.
Laurence made a submission in his supplementary written submissions, in response to par 162 of the plaintiffs' submissions, that there was "no conclusive evidence that the will was sent by Lloyd or received by the deceased or seen or dealt with by the Defendant". He further submitted that there was "no evidence that the letter was sent".
I understand the parties to have joined in the submission that the evidence does not establish on the balance of probabilities that the 15 October 2008 letter was sent to Mrs Rodny with the final version of the draft 2008 will enclosed.
It is known that the letter and the enclosure were not found after Mrs Rodny's death in the place where she kept her important papers. The significance of this fact must be considered in the context that Mrs Rodny preserved the empty envelope upon which she had recorded the details of her first conference with Mr Lloyd.
Also, so far as it is known or recorded, Mrs Rodny did not contact Mr Lloyd to tell him that she had changed her mind and that she did not intend to give him the instructions that he had requested.
From the whole of the evidence concerning Mrs Rodny's character and conduct, it would in my view have been out of character for Mrs Rodny to be so impolite as to not respond to Mr Lloyd. Mrs Rodny had gone to the considerable trouble of going to see Mr Lloyd, apparently on two consecutive days, with the fixed intent of making a new will to ensure that her grandchildren were provided for. It is at least not probable that she would have taken advantage of Mr Lloyd's time without doing him the courtesy of a response.
It is in this context that the evidence that Mr Lloyd's correspondence register does not record the letter being posted out of Mr Lloyd's office must be considered.
As I have explained above, although what I have described as Mr Lloyd's correspondence register does not appear to be a sophisticated record, it appears to be sufficiently comprehensive to justify as a starting position that if there is no record that particular correspondence was posted on a particular date, it was not posted. There was no evidence of the actual posting of the letter by any person who engaged in that process. Even an acceptance of Mr Lloyd's observation that he had "a very imperfect system of postings" would not justify a positive finding in this case that the letter was probably posted.
I therefore agree with the parties that, if the primary issue was whether or not the 15 August 2008 letter was posted to Mrs Rodny, the better conclusion on the balance of probabilities is that it was not posted.
However, even if that be so, there is still a substantial possibility that the letter was posted, and that the person who posted it was delinquent in recording the posting in the correspondence register. After all, almost invariably people who prepare letters intended to achieve some practical end post them.
In my view both possibilities concerning the posting of the 15 August 2008 letter are sufficiently likely to have occurred that the Court would not be warranted in proceeding only on the basis that the most likely of the possibilities did occur to the exclusion of the occurrence of the other. That would be an unwarranted exclusion of one of the two possible courses of events, which had a substantial likelihood that it in fact occurred.
There is great difficulty in dealing with the consequences of the 15 August 2008 letter having been, or not been, posted, because of the multiplication of possibilities, and that the course of events could have been altered by what may have occurred on 3 September 2008, which is entirely unknown.
If the letter was not posted, the significance of that alternative occurring would depend upon what Mrs Rodny expected to happen as a result of what happened, and what she was told, on 14 and 15 August 2008. Those matters are entirely speculative.
If Mrs Rodny did not expect to be sent the letter, and she did not receive it, then she would have been none the wiser. Subject to what may have happened on 3 September 2008, Mrs Rodny could only have believed that she had made a new will in terms of the 2008 will if she formed the belief that she had signed that will on 15 August 2008.
If Mrs Rodny left Mr Lloyd's office on 15 August 2008 expecting that Mr Lloyd would send her a draft of the will by letter, the most natural response of Mrs Rodny, if she did not receive the letter over the period she was in hospital, would have been to contact Mr Lloyd's office to see what had gone wrong. That may have had something to do with the making of the appointment for Mrs Rodny to see Mr Lloyd on 3 September 2008.
If, on the other hand, the letter was posted and received by Mrs Rodny, and although Mr Lloyd cannot remember receiving any response to the request in the letter for confirmation that the draft will accorded with Mrs Rodny's instructions, it is possible that the confirmation could have been given in association with the making of the appointment for 3 September 2008 and Mrs Rodny's attendance at Mr Lloyd's office on that date.
In this way, the issue of what may have happened on 3 September 2008 becomes of primary importance.
As I have recorded above, Mr Lloyd did not have any recollection at all of whether or not Mrs Rodny saw him on 3 September 2008, and if she did, what happened on that occasion. On the basis of the opportunity that I had to witness Mr Lloyd giving evidence, I am satisfied that his mind was a complete blank on the subject. No help is to be received from the records kept by Mr Lloyd because his practice in making file notes was haphazard. He did not place a date on the only file note that he prepared. It was a file note of instructions from Mrs Rodny to make a will, and Mr Lloyd did not make a note of those instructions. If in fact Mr Lloyd saw Mrs Rodny on 14 and 15 August 2008, he only made a file note on one of those occasions. Mr Lloyd was reduced to guessing that he only saw Mrs Rodny on one occasion on 15 August 2008, because that was the date typed into the first draft of the 2008 will. Mr Lloyd could not tell when the appointment of enduring guardians was signed by Mrs Rodny, even though it had a typed date of 15 August 2008.
What is known about 3 September 2008 is that an appointment for Mrs Rodny to see Mr Lloyd is included in Mr Lloyd's electronic diary for that date. Whether or not the 15 August 2008 letter was posted and received by Mrs Rodny (although more likely if it was received) the making of a further appointment for 3 September 2008 is a logical step for Mrs Rodny to have taken. The date is after the time Mrs Rodny returned home from hospital.
Of course, it may be possible that the fixing of the conference in Mr Lloyd's electronic diary was an aberration, and the date may have come and gone without Mrs Rodny attending upon Mr Lloyd. However, as I have noted above, a search of Karod was made by Mr Lloyd on 2 September 2008. That circumstance suggests that Mr Lloyd thought that obtaining the search would be necessary for some relatively imminent purpose. Furthermore, Mrs Rodny originally gave Mr Lloyd instructions to prepare a power of attorney for her, and Mr Lloyd apparently did nothing to comply with those instructions until a draft power of attorney was prepared on 4 September 2008. There must be a real chance that something happened on or about 3 September 2008 to remind Mr Lloyd that he still had to draft the power of attorney. That he did so on 4 September 2008 suggests that he believed Mrs Rodny had a continuing desire to execute a power of attorney.
In these circumstances it seems to be improbable that nothing at all happened on 3 September 2008 concerning the implementation of the instructions that Mrs Rodny had given to Mr Lloyd in August.
If Mrs Rodny did see Mr Lloyd or someone else in his office, on 3 September 2008, there must be a real likelihood that she would have executed the 2008 will on that occasion. Mr Lloyd did not give any positive evidence that Mrs Rodny advised him that she did not intend to make her new will.
Further, if the appointment of enduring guardians was not signed by Mrs Rodny on 15 August 2008, the only other date on which she could have signed the document in Mr Lloyd's office was 3 September 2008. Unless Mrs Rodny had positively changed her mind that she would make a new will, if she visited Mr Lloyd on 3 September 2008 to sign the appointment of enduring guardians, it is most likely that she would have taken the opportunity to sign her new will on the same occasion.
It is not particularly surprising that Mrs Rodny did not leave any new will that she executed for safe keeping with Mr Lloyd, because Mr Lloyd was not her solicitor.
I appreciate that if Mrs Rodny took any new will that she had executed home with her, it was not found after her death. That fact does not exclude the possibility that in fact Mrs Rodny took her new will home and placed it in the place where she kept her important documents. I will say something more below concerning the fact that any 2008 will executed by Mrs Rodny has not been found.
There is no positive evidence at all that Mrs Rodny executed the 2008 will on 3 September 2008, or even that, if she received the final draft of the will with the 15 August 2008 letter, she executed it by some means other than going to Mr Lloyd's office. However, as to the possible events of 3 September 2008, the possibility that the will was in fact executed by Mrs Rodny on that date is consistent with the intent of both Mrs Rodny and Mr Lloyd, the opportunity for the event to have happened, and the fact that, as I have found, Mrs Rodny told Jeannette, Avi and also Laurence that she had made a new will in which she had left 102 Balfour Road to her grandchildren.
I should record that I regret having to have made the negative observations that will be found in these reasons concerning the reliability of the evidence given by Mr Lloyd. He has not been represented and has not been able to explain his position. It cannot be known whether there would have been a better outcome if Mr Lloyd had cooperated with the parties in exploring the evidence that he could give. I should also record that I found Mr Lloyd to be a cooperative witness and a candid one within the limits of his memory, and I accept that Mr Lloyd gave his evidence honestly.
The essence of the problem is that too many of Mr Lloyd's business records do not fit with the course of events as they were recalled by Mr Lloyd. The real possibility that the 15 August 2008 letter was not posted, and Mr Lloyd's total inability to explain what happened on 2 to 4 September 2008, when it is plain that at least some relevant things happened, removed the footing from Mr Lloyd's evidence. On the basis that the entries in Mr Lloyd's business records must have some meaning relevant to the purpose for which the records were produced, real suspicion is justified that persons in Mr Lloyd's office other than Mr Lloyd were engaged in the implementation of Mrs Rodny's instructions in ways that are outside Mr Lloyd's knowledge or recollection. Whether that is in fact so cannot be known.
It is known that Mrs Rodny signed the appointment of enduring guardians, whether on 15 August 2008, 3 September 2008 or some other time, and steps were not taken to cause the guardians to sign the document. More significantly, the power of attorney was drafted on 4 September 2008, and nothing seems to have been done to cause it to be executed by Mrs Rodny. Unlike the position with the final draft of the 2008 will, there is not even a letter on Mr Lloyd's file that refers to the draft power of attorney being enclosed and seeks Mrs Rodny's instructions as to its suitability, and suggests arrangements for its execution by Mrs Rodny. This is inexplicable from Mr Lloyd's perspective.
It also raises a serious question from Mrs Rodny's perspective. It is one thing to observe that persons who give instructions for the drafting of a will sometimes change their minds. Given the nature of an appointment of enduring guardian and the granting of a power of attorney by a frail and ailing 86-year-old woman, it is improbable that she changed her mind about ensuring those documents became effective.
Whatever may be the significance of the evidence of Mrs Rodny's serious ill-health and frequent hospitalisations and need for medical care, there must in my view be a real probability that Mrs Rodny's deteriorating health, in concert with Mr Lloyd's loss of attention to the issues, was a cause of the apparent failure by Mrs Rodny to cause the appointment of enduring guardians and the power of attorney to be executed in the manner necessary to make them effective.
Of the considerable number of possibilities that could have occurred, I have concluded that the most likely is that the 15 August 2008 letter was not in fact posted to Mrs Rodny, and by reason of the fact that she had at least signed the power of enduring guardian on 15 August 2008, and possibly but not likely the first draft of the 2008 will, she came to believe, possibly influenced by her ill-health and hospitalisation, and in the absence of follow-up by Mr Lloyd, that she had effectively implemented her intention to make a new will. That conclusion rests on my finding that more likely than not the 15 August 2008 letter was not posted. That course of events would be consistent with Mr Lloyd's actual recollection, based as it was on the assumption that the 15 August 2008 letter had been sent and received by Mrs Rodny. It would require nothing of significance involving Mrs Rodny to have happened on 3 September 2008, notwithstanding the steps taken by or on behalf of Mr Lloyd around that date. If these are the events that occurred, there is a substantial likelihood that Mrs Rodny intended the final draft of the 2008 will to operate as her will, as that document incorporated all of her instructions. Mrs Rodny would have executed a will in those terms had one been available while she was in Mr Lloyd's office. There is a probability that Mrs Rodny did not actually see that document, as it is likely that Mr Lloyd corrected his error after Mrs Rodny left his office. The absence of full evidence as to what Mrs Rodny did, and what she was told on 14 and 15 August 2008, prevents confident findings being made concerning what actually happened, assuming that this course of events is the most likely to have occurred, even on the balance of probabilities.
The alternative possibility that the 15 August 2008 letter was posted to Mrs Rodny, and also the possibility that Mrs Rodny was involved in steps taken on 3 September 2008 concerning the execution of her will, gives rise to the real possibility that in fact Mrs Rodny did execute the 2008 will, being the enclosure with the 15 August 2008 letter, or some identical document printed out for the purpose of execution by Mrs Rodny.
Amidst this uncertainty, I am satisfied that the Court should find, on the balance of probabilities and having regard to my judgment of the credibility of the evidence given by the witnesses, that Mrs Rodny believed in or after August 2008 that she had made a new will in terms of the final draft of the 2008 will, because she said to Jeannette, Avi and Laurence that she had done so.
The uncertainties that arise out of a consideration of the evidence give rise to a number of questions: 1. Can the intention of the deceased required by s 8 sufficiently exist by proof of the intention and proof of the terms of the document, in circumstances where it is not possible to prove in any precise way the events that led the deceased to form the intention in relation to that document? 2. Is it sufficient if it is proved that the deceased in fact intended one of a number of identical documents to take effect as her will, but it is not possible to identify which particular document of the number was the actual one the subject of the deceased's testamentary intention? 3. Can a document that in fact expresses the testamentary intentions of the deceased be "a" or "the" document for the purposes of s 8 of the Succession Act, if it was prepared after and in accordance with the deceased having given precise instructions, but in circumstances where it cannot be proved that the deceased read or had read to her what was written in the document and actually expressed her approval of it? 4. Must the Court decline the plaintiffs' probate claim because of the possibility that Mrs Rodny did execute a new will and that will has not been found after her death?

[49]

Uncertainties concerning formation of Mrs Rodny's intention

The first question that requires consideration is whether it matters that the Court cannot determine on the evidence on the balance of probabilities any particular course of events whereby Mrs Rodny came to intend the 2008 will to operate as her will.
I consider that s 8 of the Succession Act only requires a finding, on the balance of probabilities, that at some time, whether at the time the 2008 will was prepared or some later time, Mrs Rodny formed the intention that it would operate as her will, and it does not matter that the evidence does not establish the precise course of events that led her to form that intention. Uncertainty about the course of events will be relevant to the factual question of whether the Court can properly be satisfied on the balance of probabilities that Mrs Rodny formed the necessary intention, but the existence of the intention can be found provided that the evidence is sufficiently clear, even though the pathway from the creation of the document that purports to state the testamentary intentions of the deceased in this case to the formation of the intention that the document operate as Mrs Rodny's will is completely obscure.
One of the reasons that I have taken care to analyse the evidence in the detail that I have above is to satisfy myself that the evidence is not inconsistent with Mrs Rodny forming the intention that the 2008 will should operate as her will. Notwithstanding the extraordinary degree of uncertainty that has arisen largely from the manner in which Mr Lloyd acted upon Mrs Rodny's instructions and his record-keeping practices, I am satisfied that the evidence does not exclude Mrs Rodny having formed the intention required by s 8 of the Succession Act.
In this case, my acceptance of the evidence that Mrs Rodny said that she had made a will, where the subject of her statement could only be in the terms of the 2008 will, leads me in accordance with s 8(3)(b) to find that Mrs Rodny intended the 2008 will to form her will within the meaning of s 8(b)(a) of the Succession Act.

[50]

Significance of multiple identical documents

The second question that I will consider is whether or not it is fatal to the operation of s 8 of the Succession Act that there may have been more than one document prepared (possibly three), and that although each document was on the balance of probabilities identical in the testamentary intentions that it expressed, the evidence does not permit the Court to make a finding on the balance of probabilities that the subject of Mrs Rodny's expressed intention was a particular one of the documents.
The question of whether it is necessary to identify the "iteration" of the 2008 will that is the subject of Mrs Rodny's testamentary intention is a significant issue because there is authority that explains how s 8 of the Succession Act can operate differentially according to which particular version of the document is intended by the deceased to form the deceased's will.
In Mahlo v Hehir [2011] QSC 243, McMurdo J considered a case where the deceased was found to have prepared her own will on her computer and then saved the will as a file. Thereafter, the deceased printed a copy of the electronic file.
Her Honour made the following finding at [42] (footnote omitted): [42] She had had fairly recent experience in making a will. The February 2008 will was signed and witnessed. The electronic document made specific provision for where her signature was to appear and where the signatures, names and addresses of witnesses were to be placed. She had been reminded by Mr Hehir of the necessity for her signature, in his email of 8 May where he asked for a copy which he would "… peruse to ensure that it still will meet the legal criteria and the document will reflect your wishes will be met before resigning it". She had researched relevant websites for information about making a new will and revoking the power of attorney.
Thus, McMurdo J distinguished between the testamentary effect of the electronic file and the document that was printed out, even though the two documents contained identical information.
McMurdo J concluded her judgment at [44] and [45] in the following way (footnotes omitted): [44] I am satisfied that Dr Mahlo intended to make a will in the terms of the electronic document. That is demonstrated by the fact, as I have found, that she signed what I infer was a hard copy of that document. But it is another thing to say that she intended the electronic document to be the will. This is not a case such as Re Trethewey, where a document upon the deceased's computer was held to be his will but in circumstances where he had said on several occasions that he had left a will on his computer. Dr Mahlo did not do that; instead she described the paper document as her will. [45] Accordingly, the claim will have to be dismissed. The outcome is far from satisfactory, because according to the evidence and my findings, Dr Mahlo made a document which she intended to be her will. But that is not the document the subject of this claim. There was no alternative claim to have the paper document, which cannot be found, declared to be her will. Thus there was no consideration in the evidence or the arguments as to whether there was a rebuttal of the presumption that this lost document was destroyed by Dr Mahlo, a consideration which would have been necessary for that alternative case.
As McMurdo J herself noted, this result was "far from satisfactory". As her Honour found that it was the printed version of the will that was intended to have testamentary effect, and as the printed document could not be found, there was no evidence to support a finding rebutting the presumption that the lost document was destroyed by the deceased with the intention of revoking its effect as a will.
In Yazbek v Yazbek, Slattery J at [96] observed that the decision in Mahlo v Hehir "turned on the facts".
While the following considerations may not be directly applicable to the resolution of the problem in the present case, they may throw some light on the proper resolution of that problem.
Where a deceased person's will is prepared and executed in documentary form in accordance with the requirements for due execution in the Succession Act, there should be no problem in identifying the original will, and the possible existence of numerous photocopies of the original will should not cause any difficulties.
However, once it is allowed that effective wills may be made in the form of electronic documents, the need to adopt a more liberal or elastic concept of wills and copies of wills may become inescapable. Because of the ease with which electronic copies of electronic files are made, it may often be necessary to treat electronic copies of files as equivalent documents.
For example, a person intent on making the person's own will on his or her computer may open a Word document and type a will. For convenience the person may save the completed document on Desktop for the purpose of considering revisions. When the document is complete to the satisfaction of the person, it may be saved on Desktop, and then for the sake of security also saved in Documents. The person may be careful enough to back up his or her hard drive. The electronic file of the will could be saved on the Cloud. The person then may delete the file from Desktop as part of a tidying up process.
Some people prefer to proof read electronic documents by printing out a copy and reading the copy.
A copy of a will contained in an electronic file that has been printed out, may then be given by the person to a friend for safe keeping, to preserve against the possibility that the computer and its files are lost or destroyed.
The point of making these observations is that, given the way electronic documents are created on computer in the modern world, it will often be easy and natural for the author to create numerous electronic and hard copies of the one document with no real intention that one version will have paramount effect over the others.
The very fact of the information in the various versions being identical is likely to cause the lay author to treat them all as having equal effect. That may be so notwithstanding that the author gives a printed copy to a friend, or sends an electronic attachment to a friend, with the words: "Here is my will".
The remedial intention of s 8 of the Succession Act would likely be defeated in cases where the Court was too astute to try to identify one of many versions of the will as being the will to which the deceased person's testamentary intention attached. The exercise would sometimes be futile, and in others give rise to perverse consequences.
A similar set of problems may arise where there is evidence that the author of an electronic will has destroyed by deletion some files containing the will, or printed versions of the will. As I have said, although first saved to the Desktop, that file may be deleted when the author is satisfied that the file has been saved to Documents. The printout might be destroyed after the process of proofreading has been completed.
In Yazbek v Yazbek, Slattery J was concerned with a case where there was an electronic file containing the terms of a will produced by the deceased, and also evidence that the will had been printed out. Neither version of the will was ever signed.
Slattery J found at [113] that the electronic document, which he called "Will.doc", was intended by the deceased to form his will. The deceased had told an acquaintance: "There is a will on my computer and also one at home in a drawer": see [114]. His Honour found at [117] that whenever the deceased referred to the existence of his will "he referred to it as being, at least, on his computer and Will.doc was found undeleted on [the deceased's] computer". However, Slattery J also found at [122] that Will.doc was printed on 14 July 2009.
At [124]-[127], Slattery J rejected an argument that, because the paper copy was not found among the deceased's papers at his death the Court could infer that it must have been destroyed. He said at [127]: "… Ultimately in applying the Succession Act, s 8 the Court is required by the statutory command to determine whether the deceased intended Will.doc to form his or her will."
His Honour ultimately explained his decision in the following terms: [124] The defendants argue that because the paper copy was not found among the deceased's papers at his death the court can infer that it must have been destroyed. It is probable the defendants contend that he had a change of mind, destroyed the will deliberately and that is why it could not be found… [127] Though put with great skill, I do not accept this argument. Ultimately in applying Succession Act, s 8 the court is required by the statutory command to determine whether the deceased intended Will.doc to form his or her will. Mr Meek SC, on behalf of the plaintiff said that, the court did not have to look to the detail of the law of revocation and that it was sufficient for the court to apply the statutory command and determine on the evidence what was the deceased's intention about Will.doc forming his will. In my view that is the right approach. It appears consistent with the authorities in relation to interim and draft wills: cf Permanent Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30. But even if the law of revocation of wills is applied, this is not a case where the court should infer that Will.doc or its printed copy were revoked. [128] In my view there are two problems with the defendants' argument, whether addressed through the application of Succession Act, s 8 or the law of revocation of wills. The first problem relates to the lack of pre-eminence of the printed document over the electronic document, Will.doc. The second problem is the deceased's likely affirmation of Will.doc as expressed in his final testamentary intentions less than three weeks before he died. [129] The evidence only really supports the inference that the deceased viewed the printed out paper copy of Will.doc as a paper equivalent of the electronic document but no more. I accept the defendants' argument that the act of printing was important. Coupled with the deceased's statement to Mr Girgis within only a few hours, it affirms that the deceased was content to have the printed paper copy then described as his "will". But the words he spoke to Mr Girgis made the paper copy no more important than the electronic version, Will.doc. He described both of them to Mr Girgis in terms that gave neither pre-eminence over the other. He did not specify the drawer in which the paper copy could be found. There were no doubt many drawers at the deceased's home. He certainly did not say that it had been signed. All that can be said, in my view, about the deceased's communication with Mr Girgis is that he was making clear to Mr Girgis that his will could be found in two places, in a drawer at home and on his computer. In no other conversation with the deceased is any pre-eminence given to the written document. [130] But in my view, the failure to find the printed copy does not weigh heavily against the deceased's other conduct which, in my view, affirms Will.doc as his will. Daniel goes into the computer and accesses Will.doc on 1 September 2010 and apparently deliberately leaves it on the computer. He was capable of deleting it or removing its testamentary elements. But he does not delete or edit it. Rather, he tells his brother Matthew that he has a will. It is unlikely in my view that he would have already destroyed the will when he said that to Matthew. The inference is in my view that the deceased was thereby reaffirming what remained on his computer.
Notwithstanding his having expressed these conclusions, Slattery J continued on to consider the possibility that the deceased in fact intended the lost printed copy of the electronic file Will.doc to have been his will, and whether the presumption of revocation if a will was last known to be in the custody of the deceased, but was not found on the death of the deceased, should be found to have been revoked. His Honour found at [138] that, if the case needed to be decided by applying the presumption, he would have found that the presumption had been rebutted.
The task faced by Slattery J in Yazbek v Yazbek was perhaps simplified by the fact that the evidence disclosed that there was one electronic file containing a will and one document had been printed out and lost. In the manner that I have attempted to outline above, cases may easily be imagined that are much more complicated. Sometimes there may be multiple identical electronic files containing the terms of a will, and perhaps sometimes even multiple printed copies. There may be cases where some electronic files have been deleted but others have not, and some hard copies just destroyed or lost.
I respectfully suggest that the concept identified by Slattery J at [128] of whether one version of a will takes "pre-eminence" over others may provide the solution to this problem.
If the evidence does establish that the deceased has treated an electronic or a printed copy of a will in identical terms as being pre-eminent, and the specific subject of the deceased's testamentary intention, then it may be appropriate for the Court to treat that individual document as being the single document for the purposes of s 8 of the Succession Act, with all of the consequences that may follow by reason of the application of any relevant principle of probate law.
The problem in the present case is a different one, but the solution to the problem may be assisted if it is accepted that the references to "a document" and "the document" in s 8 of the Succession Act may be satisfied when there are two identical written documents and the evidence establishes that the deceased intended one or other of the specific documents to form his or her will, but the evidence does not permit a finding on the balance of probabilities as to which of the documents was the real subject of the deceased's intention.
It will be necessary at this point to look more closely at the way in which the plaintiffs have pleaded their claim in the amended statement of claim. I have discussed the terms of the amended statement of claim above, but it will be convenient to repeat the relevant allegations.
Prayer 1 is a claim for a declaration "that the undated and unsworn Will prepared by Mr John Lloyd, Solicitor, in or about August 2008, constitutes the last will and testament of the deceased". Although the document so described is called the "2008 Will", it is not further identified.
The 2008 will is simply described in par 4(d) of the pleading as "unsigned Will prepared in August 2008". Paragraph 13 alleges: "Mr Lloyd forwarded the Unsigned 2008 Will to the deceased's home address under cover of letter dated 15 August 2008".
Given that allegation, the effect of the allegation in par 19 that "in the premises, the deceased was prevented from executing the Unsigned 2008 Will", should be taken as identifying that the specific document that was claimed by the plaintiffs to be the 2008 will is the copy of the second draft of the 2008 will that was supposedly enclosed with Mr Lloyd's 15 August 2008 letter addressed to Mrs Rodny at her home address.
If the 15 August 2008 letter had been posted to Mrs Rodny and received by her, then the 2008 will would have come into her possession, and been potentially subject to the presumption of revocation, as it was not found after Mrs Rodny's death.
The amended statement of claim was prepared before Mr Lloyd had given his evidence and produced his file and records from his office. It was Mr Lloyd's correspondence register that primarily supported an argument that the 15 August 2008 letter was not posted to Mrs Rodny, which in turn has led to all parties submitting, in the manner that I have discussed above, that the evidence does not support a finding that the 15 August 2008 letter was in fact posted.
If the 15 August 2008 letter and its supposedly enclosed copy of the 2008 will was not posted, then the subject of Mrs Rodny's testamentary intention as being her will would become the draft of the 2008 will that remained on Mr Lloyd's file.
In this event, there may be a problem as to how Mrs Rodny came to believe that the re-drafted 2008 will was the document intended to operate as her will, but the potential for the presumption of revocation to apply would be removed.
As I have also recorded above, the plaintiffs submitted that Mrs Rodny may have executed the 2008 will by attending Mr Lloyd's office on 3 September 2008. If it be accepted for the moment that such an event is possible, the version of the 2008 will executed by Mrs Rodny could not have been the draft of the 2008 will that remained on Mr Lloyd's file (because that document has not been executed), but would have to be another version of the document, either the enclosure with the 15 August 2008 letter if in fact it was posted to and received by Mrs Rodny, or a new version of the document prepared specially for execution by Mrs Rodny.
Although I have been forced to conclude by the almost total absence of evidence that this third possibility cannot rise higher than mere speculation, it does demonstrate how it is possible that Mrs Rodny could have formed her understanding that she had made her will by reference to a document intended to have effect as her will, but there could be three identical candidates for being the subject of her intention.
The circumstances in which some of these documents could have come into existence and come into the possession of Mrs Rodny could invoke the potential application of the presumption of revocation. It should be recorded that Laurence, on my understanding of his pleaded defence and his submissions, did not put a submission that assumed any document capable of being Mrs Rodny's will came into her possession, and the submission that the circumstances in which the document has not been found after Mrs Rodny's death warrant the conclusion that Mrs Rodny revoked the will because the presumption of revocation has not been rebutted: see Cahill v Rhodes [2002] NSWSC 561 at [53]-[69].
Laurence did not rely upon the presumption of revocation notwithstanding that the plaintiffs' case was originally pleaded on the basis that the 2008 Will was sent by Mr Lloyd to Mrs Rodny under cover of the 15 August 2008 letter, and as the enclosed version of the 2008 will was not found after Mrs Rodny's death the opportunity for Laurence to rely upon the presumption of revocation arose.
It may be that if a number of identical, physical documents that are shown to have been in the possession of the deceased, cannot be separated as being equal candidates to be the subject of a deceased's proved intention that one or other of the documents should operate as the deceased's will, the Court should not grant probate in respect of any of the documents if the application of the presumption of revocation when applied to any of the candidate documents would lead to a finding that the deceased's will if it consisted of that document had been revoked. That is, if the specific document that the deceased intended to be his or her will cannot be identified as between a number of identical documents that have come into the deceased's possession, then s 8 of the Succession Act should not have the effect that any one of the documents should operate as the deceased's will unless all of the documents could equally effectively operate as the will.
That is not a question that needs to be resolved in this case, because the application of the presumption of revocation was not raised by Laurence when it should have been raised in answer to the claim pleaded by the plaintiffs. I consider that McMurdo J in Mahlo v Hehir rejected the application for a grant of probate of the electronic version of the will in that case because her Honour found that the deceased intended the written printout to be her will, and there was no claim for probate of the written printout. Furthermore, because there was no such claim the possible application of the presumption of revocation had not been explored. The present case is different, because the plaintiffs' pleaded case sought probate of a version of the 2008 will that was potentially subject to the presumption of revocation, but Laurence did not rely upon the presumption.
Following Mr Lloyd's evidence and the production of his file and his firm's business records, the basis upon which the plaintiffs' put their case changed (in that they submitted that the version of the 2008 will that was supposed to be an enclosure with Mr Lloyd's 15 August 2008 letter was not posted to Mrs Rodny) and Laurence did not assert that the claim ultimately put by the plaintiffs was outside their pleadings, and the case was fought generally in response to Mr Lloyd's evidence and the significance of the documents that he produced.

[51]

Preparation of will after instructions given

The last question that I will address is whether the 2008 will is precluded from being a document that Mrs Rodny intended to form her will for the purposes of s 8 of the Succession Act, because there is no evidence that she saw it after it had been prepared by Mr Lloyd or confirmed that the testamentary dispositions contained in it were in accordance with her instructions and intentions. That question arises because more probably than not the second draft which I have defined as the 2008 will was prepared after Mrs Rodny had left Mr Lloyd's office on 15 August 2008. This problem may not have arisen in the same form if the 2008 will was in fact posted to Mrs Rodny under cover of the 15 August 2008 letter, or she had attended Mr Lloyd's office on 3 September 2008 and executed a will in the terms of the 2008 will.
If s 8 of the Succession Act is applied in accordance with the ordinary meaning of the words used, all that is required is that Mrs Rodny formed the intention that the 2008 will would operate as her will, and that the testamentary intentions contained in the document were in fact her testamentary intentions. The section does not exclude the possibility that a deceased could form the necessary intention in relation to a particular document that purported to state the deceased's testamentary intentions, knowing that the document would be prepared after instructions to prepare it had been given by the deceased, and without the deceased having an opportunity to confirm in fact that the document conformed to the deceased's instructions. The issue depends upon the formation of the intention. If there was a mistake and the document did not conform to the instructions, then the intention and the testamentary intentions in the document would not match and s 8 would not apply.
E M Heenan J in Deeks v Greenwood [2011] WASC 359 (whose judgment is extracted by Hallen J in Angius) accepted that there may be cases where a document prepared for execution and submitted to the testator is capable of being an informal will notwithstanding that for some sudden and unexpected reason the document was not executed or properly executed. His Honour contemplated the case where the document had been submitted to the deceased. Habersberger J in Fast v Rockman [2013] VSC 18 (whose judgment is also extracted by Hallen J in Angius) referred to the case where the deceased intended to sign a document and thereby to make it his or her will but died before signing it, and to the specific illustration where the deceased had read the will prepared by his solicitors on his prior instructions, confirmed to those present that he was going to sign it, and then died before placing his or her signature on the document. Both of those cases considered examples where the deceased had read the document.
However, in my view, in the terms expressed by Habersberger J in Fast v Rockman at [113], the Court is required to assess "what ultimately is a question of fact as to whether the requisite intention existed".
The fact of the document being prepared on the deceased's instructions and not seen by the deceased, and specifically confirmed as embodying those instructions, will be an evidentiary matter relevant to whether the deceased formed the necessary intention in relation to the document and the testamentary intentions stated in it, but it will not preclude proof of the deceased having the intention required by s 8 of the Succession Act.
In the present case, the first draft of the will was prepared in accordance with Mrs Rodny's instructions but it omitted the gift of the shares in Karod to Laurence. As I have stated above, I have not accepted Mr Lloyd's evidence that he noticed the omission and corrected it in the second draft without Mrs Rodny being aware of the error, and that he sent the corrected draft to Mrs Rodny under cover of the 15 August 2008 letter in circumstances where she had not seen any draft. I have rejected that suggestion because of my finding that in fact Mrs Rodny visited Mr Lloyd on two occasions, and on the second expected to execute the will prepared by Mr Lloyd upon instructions given to him on the first occasion. It is improbable that Mrs Rodny would not have been made aware of the specific nature of the omission before she left Mr Lloyd's office. For the purpose of resolving the present issue the point is that I am satisfied that Mrs Rodny would have understood that the first draft implemented all of her testamentary instructions except for one, which would be corrected in the second draft. The relatively limited nature of the correction assists me in making a finding that whenever, and by whatever means, Mrs Rodny formed the actual intention that the 2008 will would operate as her will, she would have expected the revised draft to have corrected the one omission made in the first draft, and it did so.
I am therefore satisfied that on the facts of the present case the 2008 will was capable of being the document referred to in s 8 of the Succession Act.

[52]

Significance of any will executed by Mrs Rodny not being found

The possibility that Mrs Rodny executed a document in the terms of the 2008 will cannot be excluded given that Mrs Rodny said that she had made a new will whose terms were consistent with that document. If Mrs Rodny did execute a new will that came into her possession, that will has not been found after her death.
It is appropriate that the Court consider the question whether the plaintiffs' probate claim should fail if the correct view is that Mrs Rodny executed a will that has been lost.
I have set out the matters that must be established before probate can be granted of a lost Will in the terms as reformulated by Campbell J in Cahill v Rhodes above.
The first matter is that it be established that there actually was a will, or a document purporting to embody the testamentary intentions of Mrs Rodny. It is clear that the 2008 will was prepared by Mr Lloyd, and the final draft of that document was in accordance with Mrs Rodny's instructions, and therefore reflected her testamentary intentions. Upon the assumption now being made that she did execute the document, then the first requirement is satisfied.
As clause 1 of the 2008 will provided for the revocation of all previous wills, then the second requirement would also be satisfied.
As the final draft of the 2008 will was in evidence, the terms of the will are established in accordance with the fourth requirement.
As there is no evidence of how the 2008 will may have been executed by Mrs Rodny, due execution of that document has not been established. However, the fifth requirement is satisfied because I have accepted that Mrs Rodny intended the 2008 will and no other document to constitute her will.
The issue would be whether the third requirement that the presumption that when a will is not produced it has been destroyed with the intent that it be revoked must be overcome has been established. As I have explained above, I do not understand Laurence to have submitted in this case that the plaintiffs' probate claim fails because of the application of the presumption of revocation.
However, against the possibility that the presumption of revocation may have application in the present case, I accept the relevant principles are as stated by Slattery J in Yazbek v Yazbek as follows: [133] The defendants submit that there is a presumption of revocation if a will was last known to be in the custody of the deceased but was not found on the death of the deceased. "If a will is traced to the testator's possession and not found after death, there is a rebuttable presumption that the testator destroyed it with the intention of revoking it": Bar-Mordecai v Rotman [2000] NSWCA 123 at [135] per Sheller, Stein and Giles JJA. [134] But Young J explained the legal requirements in relation to the operation of the presumption of revocation for lost wills in Curley v Duff (1985) 2 NSWLR 716 at 718-719. "The strength of the presumption depends on the character of the testator's custody of the will": Bar-Mordecai v Rotman at [136] per Sheller, Stein and Giles JJA and Cahill v Rhodes at [48] per Campbell J. "When the will makes a careful and complete disposition of the estate and there are no other circumstances pointing to probable destruction, the presumption has been held to be so slight as not to exist": Bar-Mordecai v Rotman at [136] per Sheller, Stein and Giles JJA. The applicable standard of proof is on the balance of probabilities: Evidence Act 1995, s 140; Clines v Johnston [2008] NSWSC 524 at [7] per Jagot AJ. [135] In Cahill v Rhodes [2002] NSWSC 561 Campbell J noted that factors including the physical arrangements the testator has for security of the will, who knows of the location of the will, whether anyone beside the testator has access to the will, and the extent to which the testator has been careful in looking after the will, are all matters relevant to the consideration of the character of the testator's custody over the lost will: at [59]. In result, in Cahill v Rhodes Campbell J found that the presumption was not rebutted, relying on evidence that suggested the deceased might have been having doubts about the appropriateness of the terms of his will: at [75]. Cahill v Rhodes was not a case in which either party submitted that the evidence showed that anyone other than the deceased had access to the will and might remove the will from the deceased's custody. [136] Moreover, in Cahill v Rhodes Campbell J, referring to Sugden v Lord St Leonards (1876) LR 1PD 154, concluded: "if a testator has made a will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the deceased's testamentary intentions between the time of the making of that will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome": at [68]. Campbell J noted that this was the particular application of how the presumption of revocation for lost wills can be overcome when evidence shows, on the balance of probability, that even though the will is lost it is more likely than not that the reason for the will being lost is something other than the deceased having the intention to destroy the will. See also Bar-Mordecai v Rotman [2000] NSWCA 123 at [135]-[136].
In the present case, the 2008 will made a careful and complete disposition of Mrs Rodny's property. It was, in relation to the gift to Mrs Rodny's grandchildren, consistent with the effect of the two 1997 wills before the ademption of the gift of Carramar Avenue. The provision made in favour of the grandchildren was consistent with the love, care and financial assistance that Mrs Rodny had given to her grandchildren during their lives. There is nothing whatever in the evidence to give the Court any reason to think that Mrs Rodny may have changed her mind after she executed the 2008 will, if that is what she did. Although Mrs Rodny had a place in her house where she kept her important papers, the evidence does not establish that it was a secure place to which only Mrs Rodny had access. In these circumstances I would not have found that Mrs Rodny had revoked the 2008 will by destroying it by reason of the fact that it has not been found after her death.

[54]

Family provision claims

As the plaintiffs' separate family provision claims were expressed in the plaintiffs' submissions to be in the alternative to the probate claim, the consequence of the probate claim succeeding is that the family provision claims must be dismissed on the basis that they do not arise.
I have given thought to whether the Court should make any findings concerning the family provision claims to deal with the possibility that the result of the probate claim is not sustained on any appeal that may be pursued. I have concluded that it will not be appropriate for the Court to deal with the family provision claims in the alternative, and if it becomes necessary, a judgment on the family provision claims can be given upon the evidence that is before the Court.
The main reason for me taking this course is that I believe that the Court's finding as to the real testamentary intentions of Mrs Rodny will be of significant importance to the determination of the family provision claims. If the finding that I have made that the evidence satisfies s 8 of the Succession Act is not sustained, then findings are possible that range between Mrs Rodny intended to leave her estate in accordance with the 2008 will, but her intention miscarried for technical legal reasons, to a finding that Mrs Rodny in fact changed her mind and decided not to execute the 2008 will. It may be that other findings could be made within this range.
I do not think that it is feasible or convenient for the Court to consider the proper outcome of the family provision claims in circumstances where Mrs Rodny's testamentary intention could fall within such a wide range of possibilities.
In the circumstances the parties are requested to bring in short minutes of order to give effect to these reasons for judgment. It will be convenient if that is done within 14 days of the delivery of this judgment.
I will hear the parties as to the appropriate order to be made as to the costs of the proceedings. If the parties cannot agree as to costs, they should exchange and deliver to my associate brief written submissions within 14 days of the delivery of this judgment, with a brief reply within a further 7 days.
The proceedings may be relisted for further argument by arrangement with my associate, if it is necessary for the Court to resolve any further differences between the parties.
Given the nature of the facts that I have been required to set out and consider in these reasons, I will give the parties seven days to make suggestions to my associate as to how the Court's Identity theft prevention and anonymisation policy should be applied to these reasons for judgment.

Weisbord v Rodny; Rodny v Weisbord

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (55 paragraphs)

Legislation Cited (3)

Cases Cited (23)

Cited By (10)