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; (b) pen lifts in places where pen lifts would not be expected to occur; (c) blunt line endings or beginnings; (d) lack of fluency in the writing; (e) tremor or hesitation in the writing; (f) subtle patching or retouching of strokes. 19 He illustrated these indicia with macro-prints of aspects of the signature which he interpreted as pen lifts and signs of patching or retouching. He also pointed to some aspects of the formation of spacing of letters and of the handwriting which in his interpretation showed significant differences between the specimens on the withdrawal slip and the disputed handwriting on the alleged will. 20 In his supplementary report, which was prepared after seeing a large number of further documents he expressed his conclusion somewhat more firmly than before. He gave his observation that the specimen writings exhibit evidence of a deteriorating writing ability, where the writer is having difficulty in maintaining fluency, being able to write along the baseline and being able to form letters legibly. In contrast, he said that the questioned writings, while slow and deliberate, are legibly formed with a constant writing pressure;. there is no evidence of deteriorated writing. 21 Mr. Anderson was cross-examined at great length and in a combative spirit, on the part of the cross-examiner and also of the witness. Mr. Anderson was not objective at all times while under cross-examination, although in relation to the nature and manner of the challenge to his evidence it would be rather difficult for any witness to remain objective. His answers did not always engage the question, and he showed some tendency to point to matters which had already appeared elsewhere and were not strictly responsive to sustain his position. The thrust of his evidence was very largely an appeal to the weight of his expertise to persuade the Court to accept his conclusions overall. 22 Detail by detail, the particular aspects of the handwriting to which he referred do not strike me as giving strong support to the conclusion that the questioned writing was forged; overall the anomalies to which he referred appear to me to be very minor and to be consistent with the situation of a person in very poor health taking studied care to sign an important document in a deliberate and careful way and on an unusually solemn occasion. 23 Cross-examination went to close detail of a number of matters of formation of letters and other aspects of the writing, including formation of the cross-bar, the indications whether or not pressure was constant in the writing and, the phenomenon of gaps between letters. Of particular significance was the passage in evidence about the formation of the "o" in "Norma"; Mr. Anderson seemed to have difficulty in acknowledging that this was an incomplete letter as written, although it is optically evident that it is. 24 In appraising Mr. Anderson's evidence it remains significant, at all stages of my approach, that most of the specimen writings put forward were not proved in any full or clear way to be the writings of the testatrix, except by the evidence of the defendant about where he found them. While on the whole there are factors which make it seem more likely than not that writings purportedly of the testatrix and found in her room or in her house after her death were written by her, the proofs are not full or clear and they come through the defendant, who is a person who has suffered convictions for dishonesty. The defendant did not bring forward all the supposed specimen writings at appropriate times, although he claims to have anticipated even before the testatrix died that he would be confronted with a forged will. His evidence was not frank in relation to the withdrawal slips, as he spoke in evidence of eight withdrawal slips whereas there was at least one other which he used to make a dishonest bank withdrawal after the testatrix had died. 25 The contents of many of the letters which are put forward among the secondary specimen writings also leave a miasma of doubt over whether they are genuine; on the one hand they show familiarity with the testatrix's affairs including family affairs, but on the other hand they speak of events which are unlikely to be correct and express views which she is unlikely to have held. 26 These things mean that there are aspects of uncertainty even about the specimen writings which are the bases of Mr. Anderson's considerations. It must always be remembered that the defendant does not bear any onus of proof. At the same time the nature and seriousness of the contention put forward that the will was forged has to be kept in view while finding the facts. If Mr. Anderson's evidence and the evidence relating to the specimen writings were looked at in abstraction from the rest of the evidence in the case, it must be said that I did not find it convincing, but its force was not destroyed. Before finding the ultimate facts I have to weigh it with the evidence of three persons who say that they were actually present and saw the event, and I must say that they carry conviction with me, and altogether outweigh the force of Mr. Anderson's evidence. 27 It was the evidence of the plaintiff that the testatrix wrote very carefully when she signed the document. The plaintiff observed no tremor and did not remember that the testatrix touched up any of the writing. Mr. North said that the testatrix seemed to take her time while signing the document. He did not see the testatrix go over the signature, meaning, as I understand him, that he did not see her over-write or touch up the signature. The defendant's evidence is that at the time the testatrix could hardly write her name and her hand was quite shaky. It is I think significant to keep in mind that at the time when the plaintiff alleges that the testatrix signed the document, she was suffering from many adverse conditions of health, she was in the last days of her life, she had been, in everyday language, an invalid for many months and was almost bedridden. She cannot have felt strong, or felt confident. 28 The other body of evidence in the first defendant's case is evidence of Mr Darren Michael himself and of Mrs Maxine Leary which would establish that Mrs Lynch and two other people did not come to the house on the afternoon of 17 October 1995, and that there was no opportunity for an attendance on Mrs Norma Michael when she could have made such a will as is alleged. 29 At times Mr Darren J J Michael's evidence showed signs of strong feeling, with intrusion of passages which were irrelevant or overstated, but events like this are not uncommonly encountered in litigation which is likely to generate strong feelings, affecting family property and dealing with close relationships. Indeed there were some signs, rather less marked, of emotional involvement in Mrs Lynch's presentation of her evidence. 30 A large number of matters were put to Mr Darren Michael as affecting his credit, and some of these had no real impact. For example I do not think that any real force can be attributed to a brief note made by an officer of the Public Trustee recording an account given by telephone by Mr Michael of what his case was at an early stage; I would not feel that his credit was injured if he gave a less than complete account then, and it seems clearly possible that the note made was less than complete. I thought too that his difficulties in recollecting whether the two Public Trustee officers who attended the house in July 1995 were both women or whether one was a man has no real significance for appraisal of his credit. 31 However reliance on the first defendant's evidence is very severely shaken by the knowledge that he has on several occasions been convicted of offences of dishonesty, for which he has been punished severely including imprisonment twice. It was also strongly adverse to his credibility that on the day after Mrs Norma Michael's death he used a withdrawal form signed by her (and there is no evidence, as plaintiff's counsel suggested, that the signature was forged) to withdraw a sum of money from one of her bank accounts. Any person observing common standards of honesty would know that money should not be obtained from a bank by the use of a withdrawal form signed by someone who has already died, and that the only honest thing to do is to report to the bank that its customer has died. The defendant introduced into evidence his own difficulty in remembering matters of detail (t100). His evidence about finding the withdrawal slips and the number of them that he found was incorrect, in that he did not mention one which he cashed, and in the context of what he did with it this was a serious inaccuracy. The first defendant was significantly inaccurate, to the extent of several hours, in giving the time of Mrs. Michael's removal to hospital on the day she died. I do not regard the first defendant himself as a witness on whose credit much reliance could be placed. 32 The defendant and Ms. Maxine Leary both gave evidence about their movements, habits and routines in terms which would support a finding that they were present at the house at the times on the afternoon of 17 October when according to the plaintiff's case, the plaintiff and two other persons attended, and the testatrix made a will. Two other persons, namely, Mr. Owen and Mr. Gavan, made affidavits which were read, at a time in the hearing when it was expected that they would attend for cross-examination, purportedly in support of the case that no person attended the textatrix at the time when it is said that she made a will. However, Mr. Owen and Mr. Gavan did not attend for cross-examination, there were no circumstances which supported a grant of leave to read their affidavits although they did not attend, and in the circumstances, their affidavits must be treated as if they had never been read. In any event, other evidence relating to Mr. Owen and his habits shows that, because of his habitual inebriation, he would not have been in a position to make an observation on which any reliance could be placed. 33 Ms Leary's evidence was based, in my view, more largely on her recollections about her own routines than on any actual recollection or knowledge of the events of 17 October 1995. It is not entirely clear that if Ms Leary or the first defendant or both had been present at the house when the plaintiff with two witnesses called on the testatrix late in the afternoon and remained for a period which may have been three quarters of an hour, or perhaps as long as an hour, the attendance of the plaintiff and her party would necessarily have been observed. It seems possible, although unlikely, that neither party may have seen the other, as the plaintiff and those with her had no occasion to look for anyone except the testatrix or to go anywhere except to her bedroom and then leave. It seems possible, although unlikely, that both groups of persons were present, but did not encounter each other. It seems rather more likely that, as acceptance of the plaintiff's case would seem to require, the first defendant and Ms Leary were absent for some reason for the relatively short time of the visit. In deciding this issue of fact the weight which I attributed to the evidence of the plaintiff and the alleged attesting witnesses is decisive. 34 The two bodies of evidence adduced by the first defendant have been altogether outweighed in my judgment by the favourable impression which I formed of the credibility of the plaintiff and her witnesses and what I regard as the overwhelming probability that their evidence is not the product of any conspiracy or contrivance among them. I have a marked preference for what I regard as the clear evidence of three eye-witnesses over adverse conclusions to be based on Mr Anderson's expert examination. 35 I find that the document bearing date 17 October 1995 propounded by the plaintiff is in fact the last will of the testatrix and was in fact duly executed by her as her will in the presence of the attesting witnesses on the date it bears. I find that it is not a forgery and it truly bears the testatrix's signature. I will pronounce in favour of that will and admit it to probate in solemn form. 36 The orders are:- (1) Give judgment for the plaintiff and grant to the plaintiff probate in solemn form of the will of the testatrix made on 17 October 1995. (2) Order that probate in common form granted on 29 November 1995 to the Public Trustee, the second defendant, of the will of the testatrix dated 27 July 1995 be revoked. (3) Order that the first defendant pay the plaintiff's costs of the proceedings and direct that the plaintiff retain the costs payable by the first defendant under this order out of the share of the assets of the testatrix passing to the first defendant under the will of 17 October 1995 so far as the same shall extend. (4) Order that the costs of the second defendant, the Public Trustee, as a submitting defendant, be paid by the plaintiff out of the assets of the testatrix. I hereby certify that paragraphs 1-36 are the reasons for judgment of the Honourable Justice John Bryson. Dated 1 February 1999. (H D LEWIS) Associate Last Modified: 06/30/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.