Pozniak Estate: Morgan v Reuben [2005] NSWSC 766

New South Wales Supreme Court

CITATION : Pozniak Estate: Morgan v Reuben [2005] NSWSC 766

HEARING DATE(S) : 18 to 25 July, 2005

JUDGMENT DATE : 1 August 2005

Equity Division JURISDICTION : Probate List

JUDGMENT OF : Palmer J

DECISION : The signatures were forgeries; judgment for the Plaintiff.

CATCHWORDS : WILLS - FRAUD - FORGERY - Whether the signatures of the deceased on a will and codicil were forgeries - whether a solicitor and his wife had falsely attested to the signatures.

LEGISLATION CITED : Conveyancing Act 1919 (NSW) - s.163F

Kurt Morgan - Plaintiff PARTIES : Elias Reuben - Defendant

FILE NUMBER(S) : SC 115853/03

M.S. Wilmott SC, M.W. Sneddon - Plaintiff COUNSEL : L.J. Ellison - Defendant

Robert King & Associates - Plaintiff SOLICITORS : Phillips Fox - Defendant

LOWER COURT JURISDICTION :

Introduction

1 The resolution of this case depends primarily on expert handwriting evidence as to whether the signatures on a will and codicil are forgeries. 2 The attesting witnesses to the signatures are a solicitor and his wife, Mr and Mrs Ryner. They have unequivocally insisted that they actually saw the deceased sign the documents. Counsel for the Defendant, Mr Ellison, has put the issue starkly but accurately thus: "If the court finds against the documents notwithstanding the evidence of the Ryners, it can only be because the Court has come to the conclusion each of the Ryners has been jointly and severally involved (at the extreme) in fraud, perjury, conspiracy, creating false documents, false entries, and (at the other of the scale) recklessness and negligence." The facts

3 The uncontested facts are very few and straightforward. 4 The Plaintiff ("Mr Morgan") is the son of the late Mrs Toni Pozniak and the Defendant ("Mr Reuben") is her son-in-law. Mrs Pozniak was born in 1915 and died on 7 May 2003, leaving an estate valued at about $2.8M nett. 5 There are three documents which purport to be Mrs Pozniak's testamentary dispositions and which are the subject of these proceedings. The first is a will dated 30 May 1995 ("the 1995 Will"). By that will, Mr Reuben is appointed executor and substantial bequests are made to Mr Reuben and his family. Mrs Pozniak's signature on that will is alleged to be a forgery. The attesting witnesses to the signature are Mr Peter Ryner, the solicitor who prepared the will, and his wife, Mrs Nadine Ryner. 6 The second document is a will dated 10 January 1996 ("the 1996 Will"). By that will, another solicitor, Mr Cordell, is appointed executor and dispositions are made which are different from those in the 1995 Will. Notably, there is no bequest to Mr Reuben. There is no contest that the signature of Mrs Pozniak on the 1996 Will is genuine and that the 1996 Will was validly executed as a will. 7 The third document is a codicil to the 1995 Will. The codicil is dated 10 March 1997 ("the 1997 Codicil"). By the Codicil, a gift of certain specific property is made to a child of Mr Reuben in substitution for a gift of another specific property which had been made in the 1995 Will. The Codicil makes no mention of the 1996 Will but, after varying the bequest in the 1995 Will, it confirms the 1995 Will as Mrs Pozniak's will. 8 Mrs Pozniak's signature on the 1997 Codicil is alleged to be a forgery. The attesting witnesses to the signature are Mr Ryner, who prepared the Codicil, and Mrs Ryner. 9 Mr Cordell has renounced Probate of the 1996 Will. Mr Morgan has commenced proceedings seeking an order that administration of Mrs Pozniak's estate with the 1996 Will annexed be granted to him in solemn form. Mr Reuben, by his Defence, seeks the grant to him of probate in solemn form of the 1995 Will and the 1997 Codicil. 10 These proceedings have been contested principally on the issue whether the signatures of Mrs Pozniak on the 1995 Will and the 1997 Codicil are forgeries. If they are not forgeries, it is conceded that the 1996 Will has been revoked by the 1997 Codicil, which has revived the 1995 Will, and that Probate of the 1995 Will and the 1997 Codicil should be granted to Mr Reuben. If the disputed signatures are forgeries, the 1996 Will is valid and effective as the last will of the deceased and an order for administration should be granted to Mr Morgan. Expert evidence as to Mrs Pozniak's disputed signatures