LYNCH v MICHAEL [1999] NSWSC 13

New South Wales Supreme Court CITATION : LYNCH v MICHAEL [1999] NSWSC 13 CURRENT JURISDICTION : PROBATE FILE NUMBER(S) : 109611/96 HEARING DATE(S) : 16-18 November 1998 18 December 1998 JUDGMENT DATE : 1 February 1999

PARTIES : DIANNE MICHELLE LYNCH v DARREN JAMELLE JOSEPH MICHAEL JUDGMENT OF : Bryson J at 1

PLAINTIFF: MR A ROGERS COUNSEL : FIRST DEFENDANT: MR D A FLAHERTY SECOND DEFENDANT: N/A PLAINTIFF: D MORGAN JONES SOLICITORS : FIRST DEFENDANT: BRIAN MULLICK & ASSOC SECOND DEFENDANT: J LINES CATCHWORDS : WILLS PROBATE and ADMINISTRATION; probate opposed on allegation that document was forged; expert handwriting evidence; probate granted on acceptance of evidence of attesting witnesses; no question of legal principle DECISION : SEE PARAGRAPH 36

IN THE SUPREME COURT OF NEW SOUTH WALES PROBATE DIVISION

BRYSON J

MONDAY 1 FEBRUARY 1999

109611/96 DIANNE MICHELLE LYNCH v DARREN JAMELLE JOSEPH MICHAEL

JUDGMENT

1 HIS HONOUR: Norma Michael late of 8 Isabella Street Revesby New South Wales, widow and age pensioner, was born on 14 August 1917 and died aged 78 in the Bankstown/Lidcombe Hospital on 22 October 1995 of cardio-pulmonary arrest. She suffered from congestive cardiac failure over some years and had been admitted to hospital on 21 October after a cardiac episode. Late in her life she had a number of health problems including arthritis, and her mobility was greatly restricted in her final months so that she moved with difficulty with the aid of a stick or walking frame, and for some months before her death had rarely left her house. She was seen by Dr Yap, her treating general practitioner, on many occasions; in his evidence he said "Her physical condition shortly before death included 1. Asthma 2. Iron Deficiency 3. Poor Nutrition 4. Heart Failure (mild)" and that she was in need of constant care. On 16 October 1995 his notes included "query dehydrated" and on 17 October a note that he had advised other occupants of her house "needs to improve her nutrition". At that time she was largely bedridden, but not completely so. 2 Notwithstanding her age and state of health Mrs Norma Michael was of ordinary soundness of mind, memory and understanding; there is no reason to doubt her capacity to express her wishes and make a will. These facts were not disputed and there is no evidence which could cast any doubt on them. 3 The plaintiff is the daughter of Mrs Norma Michael, who was also survived by two sons, Barry and Stephen Michael. In proceedings in solemn form the plaintiff propounds for probate a document allegedly executed by Mrs Norma Michael as her last will at her house on 17 October 1995. Mrs Norma Michael made at least two earlier wills, the later being a will of 27 July 1995 executed at her house in the presence of two officers of the Public Trustee, of which the Public Trustee obtained a grant of probate in common form. That grant was completed before the solemn-form proceedings began, and was unopposed, in the absence of a caveat. The plaintiff claims revocation of the common form grant. If the plaintiff does not succeed, administration by the Public Trustee will continue under the will of 27 July 1995. 4 Mrs Norma Michael's only asset of substantial value was her house, which is not subject to mortgage. The Public Trustee estimated its value at $210,000.00. She had other assets of relatively small value; furniture, a bank deposit. She had liabilities of $7,099.96 for unpaid municipal rates, and another debt for a small sum. 5 The will of 27 July 1995 gave all her property to the first defendant Mr Darren J J Michael, her grandson. Other gifts in the will did not take effect. The document of 17 October 1995, which was hand-written by the plaintiff on a printed will form, appoints the plaintiff as executrix, gives all furniture and household effects to Mr Darren J J Michael, gives Mrs Norma Michael's brother Ronald Owen $20,000.00 and makes gifts which would divide the residuary estate equally between four persons, namely her two sons, her daughter and Mr Darren J J Michael. 6 Both documents appear to me to be entirely credible versions of what Mrs Norma Michael in her situation in life and having regard to her family relationships might have decided to do. It is reasonable and credible that she may have decided to give her estate wholly to her grandson, who had led a troubled life and who shared her household for long periods, including a recent period. On the other hand it is credible too that she may have decided, in the exercise of her powers of testation, to make the benefactions in the document of 17 October 1995. Neither is in any way inofficious or an unlikely form for her testamentary dispositions to take. 7 The first defendant Mr Darren J J Michael took the active part in resisting the plaintiff's claim and was represented at the hearing by his solicitor and counsel. The Public Trustee was joined as second defendant at a late stage and filed a submitting appearance. 8 The plaintiff and the two attesting witnesses Mr D J North and Mrs V L Cornelissen gave evidence of the preparation and execution of the will on 17 October 1995 in their presence, in Mrs Norma Michael's bedroom at her house in Revesby, and their evidence if true clearly shows that the document should be admitted to probate. The first defendant's defence is a general denial; that is the defence is that the document was not signed by Mrs Norma Michael at her house on 17 October 1995, the plaintiff and the attesting witnesses did not go to the house then, no such event happened, the document is forged and does not truly bear Mrs Michael's signature at all. The plaintiff bears the onus of proof of her claim for probate, and the standard of proof is the balance of probabilities. The first defendant does not bear an onus of proof that the document is a forgery. 9 The plaintiff and the attesting witnesses gave in evidence narrations of the events of preparing and executing the will which substantially coincided; the few discrepancies or supposed discrepancies were on the most minor and incidental matters and were not of kinds which could disturb confidence in their evidence. There was no evidence of any strong previous association among these three persons. The plaintiff's evidence was to the effect that she obtained a will form about 18 months before Mrs Norma Michael died at Mrs Norma Michael's request. The will form was given to her by Ms Margaret Foat, who is Mr Stephen Michael's de facto wife. The plaintiff told Mrs Norma Michael that she had the form, and she put it away in a drawer at Mrs Norma Michael's request. In or about September 1995, 6 weeks before Mrs Norma Michael died, Mrs Michael asked her about the will form again. 10 Then on the afternoon of 17 October 1995 at about 4 pm Mrs Michael asked Mrs Lynch by telephone to come to her house and bring the will form, saying "I really want to do it now." At about the time that this request came Mr Don North was present at Mrs Lynch's home as a visitor; he was a friend of Mrs Lynch and had met Mrs Michael but did not know her well. Mrs Lynch asked Mr North to attend and witness the will and he agreed. She also telephoned Ms Foat and asked her; she said "Maybe I shouldn't because I am too close to the family" and arranged for a friend of hers, Mrs V L Cornelissen, to attend as a witness. Mrs Cornelissen was a friend of Ms Foat and of Mr Stephen Michael, but had not previously met Mrs Norma Michael, Mrs Lynch or Mr North. 11 Ms Foat took Mrs Cornelissen to Mrs Lynch's home, and Mrs Lynch, Mr North and Mrs Cornelissen proceeded in Mrs Lynch's car to Mrs Michael's home. They entered the house through the front door (which was ajar) and went to Mrs Norma Michael's bedroom, which Mrs Lynch knew well. After introductions Mrs Michael told Mrs Lynch her wishes and Mrs Lynch wrote them out, using the form. At that stage Mr North and Mrs Cornelissen did not pay close attention. Then the document was read to Mrs Norma Michael who signed it whilst still in bed, using a book as backing, and the attesting witnesses then signed it. Mrs Lynch and the witnesses then left and returned to Mrs Lynch's house. They did not encounter Mr Darren Michael or any other person while at the house. 12 Mrs Lynch and the attesting witnesses were cross-examined, with appropriate firmness in view of the nature of the issue, and in my view nothing emerged from the cross-examination which in any way shook what they had said, introduced any significant qualification or showed any matter adverse to credit. Mrs Lynch's interest is obvious as she stands to gain a quarter of the residue. However the attesting witnesses have no apparent interest, and are related to the events only by pre-existing friendship between Mr North and Mrs Lynch, and between Mrs Cornelissen and Mr Stephen Michael, who also has a quarter share of residue. When I attempt to assess the probabilities of their evidence being wholly untrue it seems to me quite significant that they are associated only in these ways and are not shown to be otherwise associated together, to have known each other well or in way to have formed a closely associated group before they were assembled out of the people who could be gathered together with a few inquiries on the afternoon of 17 October. These circumstances make it very unlikely that they joined together to concoct a false case about the events of that day, and adhered to it throughout the intervening period and while giving their evidence. If there had been any stronger association among them, then the matter would appear differently, particularly in view of what they said in evidence about what the association among them truly was. 13 Each of them gave me a favourable impression in terms of demeanour as a witness. Mrs Lynch in evidence showed signs of emotional involvement, which is understandable of the parties in this case having regard to the nature of the issue and the family relationships and property to which they relate. However the attesting witnesses appeared to me to be quite dispassionate. 14 The first defendant's case brought forward two bodies of evidence for consideration. One was the evidence of Mr Christopher Anderson, a handwriting expert, showing reasons for his view that the document dated 17 October 1995 was not signed by Mrs Norma Michael. This view was based on comparison with specimen documents which, as was claimed, bore her signatures or were handwritten by her. His first report dated 1 September 1997 used as specimen documents the will of 25 July 1995, which can be taken without any doubt to have been signed by Mrs Michael, a number of partly completed or otherwise blank withdrawal forms bearing her signature, and several letters which were treated as specimens of her handwriting. His second report dated 25 March 1998 addressed the date written on the document of 17 October 1995 as well as the signature and concluded that they were not written by Mrs Norma Michael. This report took a much larger body of specimen writings into account, including one letter which appeared to bear Mrs Norma Michael's signature. 15 The evidence which would establish that the specimen writings in fact were those of Mrs Norma Michael was presented in a very disorderly and jumbled fashion, and it was obvious from the course of the hearing that the need to show by evidence that the specimen writings were really written by Mrs Norma Michael had not been addressed or indeed understood by those representing the first defendant until the hearing was in progress. My procedural decisions allowing admission of such evidence were made at the expense to some extent of the quality of the procedural justice available to the plaintiff and those representing her to deal with the genuineness of the documents. Proof that the specimen documents are those of Mrs Norma Michael depends entirely on the credit of the first defendant, whose evidence was that he found the withdrawal forms in Mrs Norma Michael's bedroom on or about the day after she died, and that he found the other specimen documents in her bedroom at about the same time or at a later stage when he made another search; by that stage some of them had been gathered up in a box and stored elsewhere in the house. The events relating to collection of documents and the times at which they were collected have not been proved in a full or even in a clear way. There is no clear evidence that they are hers from anyone who knew her handwriting well. There are some anomalies about the letters, and many of them could well be, as evidence (which appeared to me to be speculative) suggested, letters which Mrs Norma Michael wrote out directed to family members but did not actually send, so that they express her feelings but are not communications. Others however could credibly be copies which she retained of letters which she had sent. Their contents relate to family matters and from their subject and style could have been composed by Mrs Norma Michael. 16 Mr Anderson's evidence included detailed exposition of what he observed on examination of magnifications of the writing, and of what he saw as anomalies in pen movements and formation shapes of letters. He made only the faintest of qualifications of his conclusions. When cross-examined he adhered to his position, but he became verbose and argumentative and some of the positions he adopted seemed rather strained; especially as to whether the Housing Commission letter bore a signature. I treat Mr Anderson and his expertise with respect, but I have to take his opinion evidence with the clear and to my observation unimpeached evidence of three persons who fully describe the event as having happened on 17 October 1995 and as including Mrs Norma Michael writing the date and signing the will. Given her declining state of health, even to the point of the adverse observations of Dr Yap on 16 or 17 October 1995, it does not seem surprising to me that there should be small anomalies in the penmanship and in the marks which she made when examined with microscopic detail. 17 Mr. Anderson referred to some matters as indicia of forgery, namely:- 18 (a) a slowness and deliberation in the writing;