Supreme Court New South Wales Medium Neutral Citation: Wardy v Wardy & Ors; Estate of Edmond Wadih Wardy [2013] NSWSC 244 Hearing dates: 11-15 February 2013; 18-20 February 2013 Decision date: 22 March 2013 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [83] and [84] of judgment. Catchwords: SUCCESSION - wills, probate and administration - presumption of revocation of will when original cannot be found - application of Briginshaw standard of proof to allegation of destruction of will - non est factum - understanding of effect of document by person signing it Legislation Cited: Succession Act 2006 Probate and Administration Act 1898 NSW Trustee and Guardian Act 2009 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Petelin v Cullen (1975) 132 CLR 355 Ford v Perpetual Trustees Victoria Limited [2009] NSWCA 186; (2009) 75 NSWLR 42 Category: Principal judgment Parties: Hassiba Wardy (Plaintiff; Cross-Defendant on 1st and 2nd Cross-Claims) John Wardy (1st Defendant; Cross-Claimant on 1st Cross-Claim; and 2nd Cross-Defendant on 2nd Cross-Claim) Sammy Wardy (2nd Defendant and Interested Party on 1st Cross-Claim) William Wardy (3rd Defendant; 2nd Cross-Claimant on 1st Cross-Claim; and Cross-Claimant on 2nd Cross-Claim) Linevale Pty Ltd (2nd Cross-Defendant on 1st Cross-Claim) Gordon Salier (Interested Party) Representation: Counsel: L Ellison SC with S Benson (Plaintiff) P Blackburn-Hart SC with D C Price (1st Defendant) JJ Loofs (2nd Defendant) N Confos (3rd Defendant) M W Sneddon (2nd Cross-Defendant on 1st Cross-Claim) A Hill with M Pringle (Interested Party) Solicitors: Ryan Walker Legal (Plaintiff) Bartier Perry (1st Defendant) Teece Hodgson Ward (2nd Defendant) Comino Prassas (3rd Defendant) Lawson Plowes Lawyers (2nd Cross-Defendant on 1st Cross-Claim) Gordon A Salier (Interested Party) File Number(s): 2009/321354 Judgment 1HIS HONOUR: These proceedings concern the estate of Edmond Wadih Wardy who died on 19 July 2009 aged 69. The deceased was survived by his second wife, Hassiba Wardy, by three sons of his first marriage, John, William and Sam, and by three sons of his second marriage, Anthony, Roger and Robert. Hassiba Wardy claims that the deceased died intestate and seeks a grant of letters of administration. The deceased made a will on 7 November 1992. The original of that will has not been forthcoming. Hassiba Wardy contends that the deceased revoked the will by destruction. She also relies on the presumption of revocation. By the will of 7 November 1992 Edmond Wardy appointed the Public Trustee to be the executor and trustee of his will. The NSW Trustee and Guardian (the successor of the Public Trustee) has not sought a grant of probate of the will of 7 November 1992. Its reason for not doing so is that it is presumed that the will has been revoked. John Wardy sought a grant of letters of administration with the will of 7 November 1992 annexed. William Wardy sought a grant to the NSW Trustee and Guardian of letters of administration with the will of 7 November 1992 annexed. 2The estate is substantial. At the deceased's death, he owned seven pieces of real estate. This included the family home at Milroy Avenue, Kensington, in which the deceased lived with Hassiba Wardy after their marriage. The deceased owned investment properties in South Dowling Street, Surry Hills; George Street, Redfern; Cleveland Street, Redfern; Coogee Bay Road, Coogee; Stanmore Road, Enmore; and Mitchell Road, Alexandria. He had a 50 per cent share with John Wardy of a property in New Canterbury Road, Dulwich Hill. In the will of 7 November 1992, the deceased made gifts of his real estate as follows: a) Milroy Street, Kensington to his wife Hassiba Wardy; b) South Dowling Street, Surry Hills to his sons William, John and Sam as tenants in common in equal shares; c) New Canterbury Road, Dulwich Hill, to John Wardy; d) Cleveland Street, Redfern to his wife Hassiba Wardy for her life with the remainder to his sons Anthony, Roger and Robert in equal shares as tenants in common; e) residue of all his real estate to all of his children, namely, William, John, Sam, Anthony, Roger and Robert in equal shares. 3The deceased left all his personal property to his wife, Hassiba. 4Hassiba seeks an order for provision pursuant to s 59 of the Succession Act 2006 if it is found the deceased did not die intestate. William Wardy and Sam Wardy seek orders for provision under the Succession Act whether the will dated 7 November 1992 takes effect or not. 5The claims of Hassiba, William and Sam Wardy for family provision orders were brought in separate proceedings that were heard together with the probate proceeding. The family provision proceedings had to be adjourned because it was agreed that further valuation evidence was needed for the property in George Street, Redfern and information is awaited from the Australian Taxation Office on an application for the remission of penalties. It is not presently possible to make a reliable estimate of the value of at least William and Sam Wardy's entitlements either under the 1992 will or on intestacy. Accordingly, these reasons deal only with the issues raised in the probate proceedings. 6The first issue is whether the deceased died without having revoked his will of 7 November 1992, or whether he died intestate. 7The second issue raised by William Wardy and Sam Wardy concerns the validity of an instrument signed by Edmond Wardy which provides that he resigned as the appointor of a trust known as the Edmond Wardy Family Trust and that he nominated his son, John Wardy, as the appointor of that trust and notified the trustee of the trust of that appointment. 8The Edmond Wardy Family Trust was established on 1 July 1998. The trustee is a company called Linevale Pty Limited ("Linevale"). The deceased held the only share in that company. Until 18 December 2007 he was the only director. On 18 December 2007, John Wardy was appointed as a director of that company, and after his father's death he has been the sole director. 9Linevale, in its capacity as trustee of the Edmond Wardy Family Trust, acquired a number of properties between 15 October 1998 and 8 May 2006. The trust has substantial net assets. 10Pursuant to the trust deed establishing the Edmond Wardy Family Trust, the Appointor is empowered to remove any trustee and to appoint a new trustee. John Wardy contends that by a document called "Resolution: Declaration" dated 28 March 2008 Edmond Wardy resigned as the Appointor of the trust and nominated John Wardy as the Appointor. William Wardy and Sam Wardy challenge the validity of that appointment on the grounds of non est factum. Initially, William Wardy disputed that the signature on the document was that of the deceased. That contention was not pressed. Instead, both William Wardy and Sam Wardy contend that Edmond Wardy, when he signed the document, did not understand what he was signing, but, by reason of what is said to be his diminished mental faculties, he believed the document he signed was radically different from what in fact it was and did no more than appoint John Wardy as a director of Linevale and/or Wardy SMSF Pty Ltd. (Wardy SMSF Pty Ltd is the trustee of a superannuation fund.) 11I deal first with the question whether the deceased revoked his will of 7 November 1992. No party contended that he made a later will, although Hassiba Wardy gave evidence that she had been told by the deceased that he had done so. If the deceased died intestate, Hassiba Wardy will be entitled to a statutory legacy payable pursuant to s 61B(3)(b) of the Probate and Administration Act 1898, household chattels, and one half of the estate (s 61B(3)). The remaining half of the estate would be shared equally between Edmond Wardy's six sons. Hassiba would be substantially better off if the deceased died intestate than under the will of 7 November 1992. Was the 1992 will revoked? 12The will dated 7 November 1992 was prepared by Edmond Wardy's solicitor, Mr Peter Cassimatis. He deposed that "some years" after he prepared that will, Edmond Wardy told him that he wanted to prepare a new will and would like to change the executor and change how the property was to be divided. Edmond Wardy told Mr Cassimatis that he had decided to appoint John as his executor because he knew about the properties. Mr Cassimatis prepared a draft will which he sent to Edmond Wardy by mail. On several occasions he asked Edmond Wardy if he was happy with the draft or if he wanted to make changes to it. On each occasion, Edmond Wardy said words to the effect that he would "get onto it and let you know". Mr Cassimatis retired from practice in 2005 for health reasons. On 22 December 2005 Mr Cassimatis sent the original of the 1992 will to Mr Edmond Wardy. In about January 2006 he telephoned Edmond Wardy and asked whether he had received his letter with the will. Edmond Wardy said words to the effect "Yes, I have got it, but can you look after it for me?" Mr Cassimatis declined, but told Edmond Wardy he should ensure that it was put in a safe place. Edmond Wardy said he would do that. 13Mr Cassimatis was unable to attend court for cross-examination for health reasons. His affidavit was read without objection. His inability to attend for cross-examination would affect the weight of his evidence, but no party submitted that I should not accept his evidence. I do so. 14Edmond Wardy had consulted a solicitor, Ms Kathy Klonis, in 2005 with a view to making a new will. Ms Klonis needed more instructions. Edmond Wardy told Ms Klonis that he wanted to appoint John Wardy as his executor because he trusted him. Edmond Wardy did not provide the further instructions to Ms Klonis that she needed to prepare the will, notwithstanding letters written by her dated 6 September 2005 and 25 May 2006 in which she asked him to contact her to make an appointment for that purpose. 15All of the known solicitors of Edmond Wardy were contacted and there is no evidence that he made any will other than the 1992 will. 16It can safely be inferred from Edmond Wardy's conversations with Mr Cassimatis in about January 2006 that Edmond Wardy had not then made a will subsequent to his 1992 will. Had he done so, he would not have responded as he did to Mr Cassimatis' advice that he should ensure that he kept the 1992 will in a safe place. 17Edmond Wardy had a safe place, called the "buffet", to which he had the only key. He kept the key with him at all times. He was secretive about the contents of the buffet. Only John Wardy gave evidence of being with his father when he opened the buffet so that he could see its contents. John Wardy gave evidence that he saw the original of the 1992 will in the buffet as late as May 2009. 18Anthony Wardy gave evidence that in 2006 he observed the deceased tearing up a document or documents that were kept securely in the buffet. Anthony Wardy says that his father put the torn documents in an envelope and told him to throw the envelope out without looking at its contents. Anthony says that outside his father's sight he looked at some of the torn up pieces of paper and saw on them words that included the word "will" and a typed name "J Cassimatis" and the words "I revoke", his father's handwritten signature "E Wardy" in dark ink, and parts of street names of three properties that are specified in the 1992 will. 19Anthony Wardy deposed that he did not think anything further about it until 1 August 2009 when he was at a meeting at the house in Milroy Avenue, Kensington at which John, Sam and William were present together with his mother and brothers, at which John read out a copy of the 1992 will. According to Anthony, after John read the 1992 will, Anthony said words to the following effect: "After John had read the 1992 Will there was a conversation in words to the following effect:- Me: 'Man this is like de ja vu. The paper, I've seen this before.' John: 'Where did you see it?' Me: 'I can't remember where I've seen it exactly' John: 'Are you sure? Where did you see it?' Me: 'I can't remember. Are you sure this is the last will? Are there any other wills?'" This evidence was corroborated by Hassiba Wardy, but not by any other person present. 20Anthony deposed that the occasion on which he saw his father tearing up some papers, putting them in a large yellow envelope and being told to dispose of the envelope was a Thursday afternoon in about March 2006. Anthony says that at that time he was a student in Year 12, but had come home early on Thursday afternoons as it was a sports day and he was allowed to go home early because of study periods. 21Notwithstanding the elaborate detail in which Anthony professed to recall the events of 2006, I am not satisfied that the events he described took place. 22I reached this conclusion partly because of some internal contradictions in Anthony Wardy's evidence, but primarily because his evidence is inconsistent with other unimpeachable evidence as to the statements made by the deceased after March 2006 about his existing will. 23Anthony Wardy deposed that he saw the typed name "J Cassimatis" and also what appeared to be his father's handwritten signature in dark ink written above his typed name and also his signature at the bottom of a couple of the torn pages. In cross-examination Anthony Wardy was asked how many of his father's signatures he saw. At one point in his evidence he denied having seen his father's signature in dark ink written above his typed name (contrary to what he deposed in paragraph 70 of his affidavit). Later (T143) he said that he saw his father's signature "written on the side of, on the side of you know J Cassimatis". He indicated that the typed name "J Cassimatis" was on the left and the signature was on the right hand side. He later said that he was not sure having seen the signature next to the typed name of J Cassimatis, but remembered seeing them next to each other. Mr Peter Cassimatis witnessed Edmond Wardy's signature and wrote the words "PJ Cassimatis" under his own signature. Those words were in handwriting, not typed. The only place where the typed words "J Cassimatis" appear is on the back sheet of the will. Edmond Wardy's signature was not beside those typed words. Unless two separate torn pieces of paper, one being the back sheet, and the other containing Edmond Wardy's signature, were placed side by side, Anthony Wardy could not have made the observation to which he deposed. 24Anthony Wardy said in his affidavit that it was about 5pm on a Thursday afternoon in March that the episode occurred. In his cross-examination he said that the incident occurred in the night time when there was a light on coming from the kitchen. I can take judicial notice that sunset in March 2006 was considerably later than 5pm. 25In his oral evidence, Anthony Wardy said that he saw part of a date on the torn document. In his affidavit he did not refer to having seen any part of a date on one of the torn pieces of paper. The fact that a witness under cross-examination professes a more detailed recollection than appears in his affidavit can affect the reliability of his evidence, although often it will not. In this case, Anthony Wardy appeared to place the blame on his lawyer for that piece of evidence not appearing in his affidavit, an explanation I do not accept. 26Anthony Wardy's demeanour in the witness box did not fill me with confidence, but I consider that to be an unsafe guide to assessing the reliability of his evidence. 27Although Anthony Wardy is a beneficiary under the 1992 will, he is close to his mother and has an interest in his mother's obtaining the substantially greater share of the estate that she would obtain on intestacy than she and her sons would obtain under the 1992 will. I therefore approach his evidence with caution. 28There is other evidence that forms my primary basis for rejecting Anthony Wardy's evidence. One of Edmond Wardy's solicitors was Mr Kevin Munro who had acted for Edmond Wardy from time to time between 1998 and about May 2008. He gave evidence that at a meeting with Edmond Wardy on 29 June 2007, Mr Wardy said that he was considering drafting a new will and would like to revise his existing will. He spoke of having an existing will. His particular concern was that the Public Trustee was the executor of his existing will. Mr Munro was unshaken in his evidence. He had a clear recollection of events. He had no motive or interest to say anything other than the truth. I consider him to be a reliable witness. 29Edmond Wardy must have been referring to his 1992 will because for the reasons previously given, it is clear that he had not destroyed his 1992 will by January 2006 and from at least 2005 he would not have made a new will appointing the Public Trustee rather than John Wardy as his executor. He would not have had the conversation he did have with Mr Munro had he destroyed his 1992 will as Anthony Wardy described. 30Mr Peter McGivern was Edmond Wardy's accountant. He swore an affidavit on 20 October 2011. For health reasons he was unable to attend court to be cross-examined. His affidavit was read without objection, but in assessing its weight, I take into account the fact that the parties could not cross-examine him. He was present at the meeting on 29 June 2007 with Mr Munro and Edmond Wardy. John Wardy was also present. Mr McGivern corroborated Mr Munro's evidence that at the meeting on 29 June 2007 Mr Wardy referred to his existing will. At that meeting, there was a discussion about the establishment of a superannuation fund and the fund was established. Mr McGivern deposed that he told Edmond Wardy that he would need to revise his will to ensure that it adequately dealt with the new structure that had been put in place. He deposed that Mr Wardy said "Yes, I have a will. I know all about that." Mr McGivern said, "You should consider appointing someone other than the Public Trustee as executor", and Mr Wardy said, "I spoke with a solicitor before about making a change to my will. I want to make some changes and I don't want the Public Trustee to be the executor." I accept that as further corroboration of Mr Munro's evidence that the deceased spoke of his existing will in June 2007. 31As referred to earlier in these reasons, John Wardy gave evidence of having actually seen the 1992 will in the buffet as late as May 2009. I accept that evidence. 32William Wardy gave evidence on which he was not cross-examined that in about late June or early July 2009, he had a conversation with his father when his father was in hospital. Edmond Wardy was admitted to hospital for the last time in early June 2009 and remained there until his death on 19 July 2009. William Wardy deposed that in about late June or early July 2009, he asked his father, "Have you fixed everything up so that we don't have any trouble?". Edmond Wardy replied, "John will let you know about everything. I've filled everyone's cup up to what they deserve." 33I accept that evidence. The clear inference is the deceased was asserting that he had left a will under which each family member would receive what, in his opinion, he or she deserved. 34For these reasons, I do not accept the evidence of Anthony Wardy that the deceased destroyed his will in March 2006. 35There remains a presumption that the deceased destroyed his will with the intention of revoking it. That is a rebuttable presumption of fact whose strength will vary according to the circumstances. The will was kept in the buffet to which Edmond Wardy had the only key until sometime after he was admitted to hospital in June 2009. John Wardy gave evidence that on 15 July 2009 when his father was in hospital, his father said to him words to the effect that, "Hassiba has taken the key to my buffet", and the next day that he said to Hassiba when John was present words to the effect, "I know you've got my keys. Bring them back to me. Don't touch my money.", and that Hassiba said, "I'll bring them back tomorrow". Hassiba Wardy disputes this evidence, but admits that she obtained possession of the key to the buffet on or about 17 July 2009. She deposed that she found the key in her husband's dirty clothes which she took home to be washed. According to Hassiba Wardy, when she returned to the hospital she took the key but her husband told her to keep it until he came home. He did not ever return home. Hassiba Wardy said that she did not use the key to open the buffet until 3 August 2009 when she did so in the presence of a solicitor, Ms Forial Katrib. When the buffet was opened on that occasion, it did not contain a will. 36Unless the deceased himself destroyed the will, the only explanation for the original's not having been found after Edmond Wardy's death is that Hassiba Wardy or someone on her instructions removed it from the buffet. That is what John Wardy alleges took place. That is a serious allegation to which the principles stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 apply. The seriousness of the allegation and the gravity of the consequences flowing from such a finding are to be taken into account in deciding whether the allegation has been proved on the balance of probabilities to my reasonable satisfaction (McCann v McCann [2013] NSWSC 78 at [8]). 37William Wardy's evidence referred to at para [31] above of his conversation with his father in late June or early July strongly suggests that the deceased had not destroyed his will before he went into hospital. He had no opportunity to do so afterwards. 38Hassiba Wardy denied removing the will or allowing the will to be removed. She denied accessing the buffet before she did so in the presence of her solicitor. This was notwithstanding that according to her evidence about three or four years before her husband's death, he showed her his key to the cabinet and told her (in Arabic) words to the effect, "That is for you later after me; no-one else." She deposed that on 17 July 2009, that is, two days before her husband's death, he said to her words to the following effect: "I've done a will with a solicitor. I've put everything in your name and after you, to our children. After I die, a solicitor will come to your home and they will give you the will. It is one page only and I don't want you to tell William, Sam or John anything about the will." Hassiba Wardy deposed that she asked what was the name of the solicitor, but her husband said he had forgotten. 39I do not accept that any such conversation occurred. There is no other evidence that the deceased intended to disinherit his sons of his first marriage, and given the closeness of his relationship with John Wardy, who is the only relative who assisted him in the management of his numerous commercial properties, and in whom he had expressed his trust in conversations with third parties, it is inherently unlikely that the deceased would have made such a statement. Nor has any such will been forthcoming. But if the conversation occurred as Hassiba Wardy deposed, it is strange that she did not open the cabinet when no solicitor had come to the house to give her the will that she had been told had been made. According to her evidence, her husband had told her that the key was for her use and no-one else's after his death. She should not have been under any inhibition in accessing the cabinet. 40There is evidence that she did so. William Wardy and his wife Samia Wardy deposed that they were present at a meeting with Hassiba Wardy and a solicitor whose first name sounded like Flora or Fiora, whom I take it to be Florial Katrib, in which Hassiba Wardy gave a copy of the 1992 will to Ms Katrib. William Wardy deposed that Ms Katrib said that the will had to be put to the Public Trustee and Samia asked Hassiba whether she had the original of the will and Hassiba said (in Arabic), "Yes it's inside." According to William Wardy, his wife said (in Arabic), "Bring all of the papers in here", but the solicitor said, "Don't worry. We don't need it. The copy is OK." Samia said that at a meeting at the Kensington house on 20 August 2009, there was a conversation between her, Hassiba Wardy, Roger Wardy and a solicitor who was present in which Samia Wardy asked Hassiba Wardy whether she had found the original will and Hassiba Wardy responded, "Yes". According to Samia Wardy, she asked whether she could look at it, but Hassiba Wardy said, "What for? It's the same as the one you have. What do you need to look at it for?" According to Samia Wardy, she asked the solicitor whether Hassiba did not need to give the original will to the Public Trustee, but the solicitor said that the Public Trustee did not need the original and that Hassiba should keep it so that it did not get lost. 41Ms Katrib said that she did not recall Hassiba ever saying that she had found an (or the) original will. She denied saying that the Public Trustee did not need the original will. She attended for the purpose of a search being made to find the original will and indicia of title so as to give them to the Public Trustee. In the light of Ms Katrib's evidence I am not satisfied that Hassiba Wardy made the admissions to which William and Samia Wardy deposed. 42John Wardy called a family meeting for 1 August 2009 having obtained a copy of the 1992 will from Mr Cassimatis. On 31 July 2009, he provided a copy of the 1992 will to Hassiba Wardy and told her that under that will, she got the house at Milroy Avenue, a life estate in the Cleveland Street property and that her three sons would get roughly 50 per cent of the rest of the estate. Hassiba Wardy said she was bitterly disappointed and said, "Why do I only get one building? Your father had 15 buildings. This will is rubbish." Whilst Hassiba did not accept that version of events, it is clear that she did express disappointment about the provisions of the 1992 will. According to John Wardy, he told Hassiba Wardy on 31 July that she should look in the cupboard to find the original will and Hassiba Wardy said she would do so. I accept that evidence. 43At the meeting on 1 August 2009, John Wardy attempted to get the family members to agree to his appointment as executor instead of the Public Trustee. According to John Wardy, on 3 August he had a conversation with Hassiba Wardy at her house in which there was a conversation to the following effect: "John Wardy: 'Have you found the will yet?' Hassiba Wardy: 'Yes' John Wardy: 'Can I see it?' Hassiba Wardy: 'Don't worry. I've got it.'" 44Hassiba Wardy denies this conversation. However, I prefer John Wardy's evidence. I do not consider Hassiba Wardy's evidence to be reliable. This is partly because parts of it were inherently unlikely. For example it is unlikely that Hassiba Wardy would not have opened the buffet between her husband's death and 3 August 2009. It is unlikely that Edmond Wardy would have told her that he had made a new will putting everything in her name and after her, to their children. Hassiba Wardy's evidence is also contradicted by other reliable evidence which I accept as dealt with below. Also, her evidence in cross-examination was at times unresponsive, even after making allowance for the fact that some questions and answers were given through an interpreter. 45Important evidence was given by Mrs Irina Cassimatis, the wife of Peter Cassimatis who prepared the 1992 will. She assisted her husband to deal with the discontinuance of his practice from 2005 owing to his deteriorating health. On 25 July 2009, she typed a letter for John Wardy for her husband enclosing a copy of the 1992 will. A couple of days after 25 July, she telephoned Hassiba Wardy. She deposed that a conversation to the following effect took place: "A couple of days later, I spoke to my husband. I later telephoned Hassiba. We had a conversation to the following effect: Hassiba said: 'Where did John get the copy of my husband's Will from?' I said: 'He telephoned my husband and we sent a letter out to him with the copy of the Will and a copy of an earlier letter my husband had sent to Edmond.' Hassiba said: 'I don't know where the original is.' I said: 'Have you searched to see if Edmond has put the original Will in safekeeping?' Hassiba said: 'I had a wonderful relationship with Eddy and he told me that he had left everything to me.' I said: 'Well, you should search any papers that your husband had and see whether you can find an original Will.' Hassiba said: 'You know my husband and John had a big argument. He never did anything for Eddy.'" 46She deposed that some days later, there was a further telephone conversation with Hassiba to the following effect: "Some days later, I had a further telephone conversation with Hassiba, to the following effect: Hassiba said: 'I have searched and I can't find the original Will. I think that John stole my husband's keys and then robbed the house.' I said: 'If that is what you think, you should go to the police and tell them what you think is missing. Is anything else missing?' Hassiba said: 'I think he also stole my husband's money.' I said: 'What money?' Hassiba said: 'There was a couple of $100,000 of cash and it is now missing. I had never looked in the cabinet before Eddy died.' I said: 'Well, I think you should go and tell the Police.'" 47Mrs Cassimatis deposed that about a week later, she telephoned Hassiba Wardy and a conversation to the following effect took place: "... I had another telephone conversation with Hassiba. On this occasion I telephoned Hassiba. During the conversation words were said to the following effect: I said: 'How are you getting on? Would you like to come out had have a cup of coffee away from the house?' Hassiba said: 'We have searched everywhere and we can't find the Will. The Will was ripped up by my husband when Sammy was arrested and taken by the Police. Eddy came back and he was so angry. He pulled out the papers and ripped the Will up in front of us.' I said: 'How long ago was that? When Sammy was arrested? You need to be truthful about what you say.' Hassiba said: 'I should have divorced him years ago but I don't have to worry about that because if there is no Will I will get 80% and my sons will get 10%. John and his brothers can kill themselves over the other 10%.' I said: 'I don't think your side of the family would get 90%.' Hassiba said: 'I should have followed through with the divorce. I would have ended up with more.' I said: 'I didn't know that you and your husband were going to get divorced. You told me before that you had a very good relationship.' Hassiba said: 'Yes, I saw a lawyer but I changed my mind because I thought I would get 100% when my husband died.' I said: 'Did Edmond know you wanted a divorce?' Hassiba said: 'I don't know.'" 48Mrs Cassimatis deposed that she did not speak to Hassiba Wardy again until Hassiba Wardy telephoned her in about early March 2011. She deposed that during that conversation, Hassiba Wardy said to her words to the effect: "My husband destroyed the will after he came back from a court case with Sam. He was very angry and did it in front of me." 49Hassiba Wardy denied the conversations, but Mrs Cassimatis was unshaken in cross-examination. She has no interest in the proceedings. No motive was suggested for her making up any of the evidence. I accept Mrs Cassimatis' evidence. 50I am satisfied that Hassiba Wardy made the allegations to Mrs Cassimatis to explain the absence of the original will. One allegation, which she repeated, was that her husband had ripped up the will in front of her or "us" when Sam was arrested by the police. That event took place in 2004. It is clear that the deceased did not tear up his will then and Hassiba Wardy gave no evidence of his having done so. 51The second allegation was that John Wardy had stolen her husband's keys and robbed the house. She showed her antipathy to John Wardy by accusing him of never having done anything for her husband and of their having had a "big argument". There was no basis for those allegations. It is clear that John Wardy did a great deal for and with his father. 52The false allegations to explain the absence of the original of the will connote a consciousness by Hassiba Wardy that she was guilty of having removed the document. She denied the conversations deposed to by Mrs Cassimatis, but I am satisfied with Mrs Cassimatis' evidence that they occurred. 53Having regard to all of these strands, I am satisfied to the requisite standard that the explanation for the absence of the original will having been found in the deceased's possessions is that it was removed by Hassiba Wardy or by someone on her direction. The presumption of revocation is rebutted. 54John Wardy did not press his claim that letters of administration be granted to him. Although the Public Trustee declined to apply for probate of the copy of the 1992 will, it did so for a reason I have rejected. There is power under s 22 of the NSW Trustee and Guardian Act 2009 to grant probate of the copy of the 1992 will to the NSW Trustee and Guardian, notwithstanding that it has not applied for the grant and has not consented to it. 55Accordingly, there will be a grant of probate of the copy will of the deceased dated 7 November 1992 to the NSW Trustee and Guardian (being the successor of the Public Trustee). Change of Appointor 56The Edmond Wardy Family Trust was established by a deed dated 1 July 1998. Linevale is the trustee of the trust. The trust property includes properties in John Street, Lidcombe, the Great Western Highway, Greystanes, Berith Road, Greystanes, Harris Street, Ultimo, Aylesbury Street, Botany, and Canterbury Road, Campsie. The net assets of the trust are estimated to have a value of in excess of $11 million. The trust is a discretionary trust. That is to say, Linevale has a power to appoint capital or income to such of the "General Beneficiaries" as it might decide from time to time. The "General Beneficiaries" include Edmond Wardy and Hassiba Wardy, and persons related to them, including children and spouses of children. Clause 14 of the trust deed provides as follows: "14. POWERS OF APPOINTOR TO REPLACE TRUSTEE The Appointor may at any time and from time to time by deed or by notice in writing delivered to the Trustee remove any Trustee hereof in its absolute and unfettered discretion and the right to remove any Trustee hereof and to appoint new or additional Trustees hereof by deed or notice in writing is hereby vested in the Appointor PROVIDED HOWEVER that the Settlor shall not be eligible to be appointed Trustee. Such removal or appointment shall take effect from the date of such notice. The expression the 'Appointor' shall include: (a) the Appointor's legal personal representatives as from its death; or (b) any other person or company to whom the powers hereby given may be delegated in writing by the Appointor or its legal personal representatives; or (c) in the event of the resignation of the Appointor fro the time being (which shall be ineffectual unless given in writing to the Trustee) the person or company nominated by notice in writing to the Trustee by the Appointor to be the Appointor's successor in that role; or (d) if the resigning Appointor fails to make any such nomination or the position is otherwise vacant, the Trustee." 57"Appointor" was defined to mean Edmond Wardy, his successors and assigns. 58John Wardy deposed that he prepared a document which his father signed on 28 March 2008 after he read it out to his father. The document reads as follows: "RESOLUTION: DECLARATION LINEVALE PTY LTD WARDY SMSF PTY LTD I Edmond Wardy write to record that as sole director of Linevale Pty Ltd in July 2007 I appointed my son John Wardy as a director of Linevale Pty Ltd (083 170 745) and as a director of Wardy SMSF Pty Ltd (126 261 650). I Edmond Wardy write to confirm that I resign as the appointor of the Edmond Wardy Family Trust and hereby nominate my son John Wardy as the appointor of the Edmond Wardy Family Trust and hereby notify the Trustee of this appointment. I appoint my son John Wardy as managing director of Linevale Pty Ltd. 28 March 2008 Director [signature of Edmond Wardy] witness [signature of witness]" 59As noted earlier in these reasons, an earlier contention that the document was not signed by Edmond Wardy was not pressed. Instead, Sam and William Wardy alleged that Edmond Wardy signed the document without knowing or realising the nature and effect of its content. The particulars of that allegation are that Edmond Wardy was a person who, through no fault of his own, was unable to understand the nature and effect of the document in that he had limited literacy skills and suffered from confusion, he had not received advice as to the document's nature or effect, he had not read the document, but asked John Wardy to read it to him, and that if John Wardy provided an explanation as to the contents of the document, such explanation was either insufficient to alert Edmond Wardy as to its nature or effect, or if sufficient, it was not understood by him in consequence of his confusion, which was known to John. It was also alleged that at the time of signing the document, Edmond Wardy believed that the document merely appointed John Wardy as a director of Linevale or of Wardy SMSF Pty Ltd, and not that it effected the assignment of the power of appointment. 60In Petelin v Cullen (1975) 132 CLR 355, the High Court said that the plea of non est factum is available: "... to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. ..." 61John Wardy did not allege that the plea of non est factum was not available on the ground that if Edmond Wardy signed the document in the belief that it was radically different from what it was in fact, such a belief was due to carelessness on his part. Nor was it disputed that if Edmond Wardy had believed that the document signed did no more than appoint, or confirm the appointment of, John Wardy as a director of Linevale and as its managing director, and as a director of Wardy SMSF Pty Ltd, that it would be radically different from what it was in fact (Ford v Perpetual Trustees Victoria Limited [2009] NSWCA 186; (2009) 75 NSWLR 42 at [76]). As appointor of the trust, John Wardy would have the power to remove Linevale as trustee and appoint a new trustee in its place. This would enable him to control the identity of the trustee and hence control the management and administration of the trust, even if he were removed as a director of Linevale. 62Edmond Wardy suffered from diabetes and liver disease. John Wardy deposed that in February 2007 his father told him that he was looking to reduce his workload and hand over more things for John Wardy to look after. John Wardy was the only family member who participated with Edmond Wardy in the management of the investment properties. On 19 June 2007, John Wardy had attended a meeting with Mr McGivern and Mr Munro about the establishment of a self-managed superannuation fund. On 29 June 2007, Edmond Wardy and John Wardy attended a meeting at the offices of Mr Munro with Mr McGivern. The superannuation fund was established at that meeting. There was also a discussion about Edmond Wardy's will referred to earlier in these reasons. Mr McGivern suggested that John Wardy should become a director of Linevale and Edmond Wardy agreed. Mr McGivern deposed that Edmond Wardy said, "I don't want the hassle of looking after the company. John should do it. He knows all about the properties and I trust him. Go ahead and deal with that." Mr McGivern also deposed that during the meeting he told Edmond Wardy that he should consider nominating someone to be able to appoint or change the trustee of the trusts. Edmond Wardy said he would think about it. 63Mr Munro did not specifically recall the issue of an appointor being raised in the June 2007 meeting, although it would have been his normal practice to discuss the issue about an appointor if there was discussion about revision of the will and he believed that it was more probable than not that there was a discussion about that at the time. 64Edmond Wardy was admitted to the Prince of Wales Hospital at Randwick on 12 December 2007. A meeting took place in the hospital on 18 December 2007 with John Wardy, Mr McGivern and Mr Munro. The previous day Mr McGivern had prepared an agenda of matters to be dealt with at the meeting arising from the meeting held on 29 June. During the 18 December meeting there was again discussion about John Wardy being appointed as a director of Linevale and Wardy SMSF Pty Ltd. He was appointed a director on that day. Mr McGivern brought a handwritten agenda to the meeting. Mr Munro added to the matters to be discussed the item "appointor". John Wardy deposed that at the meeting Mr McGivern said words to the effect, "We should do something about the appointor of the family trust", and Mr Munro said: "It could be dealt with by an appointment in accordance with the trust deed or by ensuring that the proper person is the executor of Edmond's will. I will have a closer look at the provisions of the trust deed." 65Mr Munro said in his oral evidence (T429) that at the meeting in December 2007, he raised the issue of the appointor of the trust as an issue that needed to be addressed. He said that he did not speak specifically to Mr Wardy about who or how or when an appointor should be appointed other than when he revised his will. Mr Munro also said that he "would have had" a discussion with John Wardy in relation to what was required under the trust deed to change the appointor (T431). He also said that he believed that he drew John Wardy's attention to the relevant clause in the trust deed. 66This was consistent with John Wardy's evidence. In the course of cross-examination, John Wardy said that he did not give instructions to Mr Munro regarding the power of appointment, but that he drafted the appointment document himself following clause 14 of the trust deed as Mr Munro had suggested to him during the meeting of 18 December 2007. 67Edmond Wardy was discharged from hospital on 8 January 2008. John Wardy said that although Edmond Wardy was physically restricted, his mental faculties were unaffected. 68Edmond Wardy had a series of admissions to Prince of Wales Hospital in 2008. He was admitted again between 4 and 8 February 2008, and between 19 and 22 February 2008, between 8 and 16 April 2008, and between 10 and 22 May 2008. He had a blood transfusion on 20 March 2008. The hospital records of Edmond Wardy's admission on 4 February record his having been brought into hospital by ambulance exhibiting increasing confusion and decreased mobility. In August he presented with increasing confusion and disorientation. The hospital records refer to diagnoses of hepatic encephalopathy in February and unspecified encephalopathy in May 2008. I do not think that any conclusion can be drawn from the hospital records as to whether there was any ongoing material impairment to Edmond Wardy's cognition. No doctor was called to give evidence as to what inferences could be drawn from the hospital records as to whether they demonstrated likely impairment of Edmond Wardy's ability to comprehend in March 2008 the nature and effect of the document he signed changing the appointor of the Edmond Wardy Family Trust. I could not take judicial notice as to the extent to which the medical conditions referred to in the hospital notes were likely to produce confusion, disorientation or other cognitive impairment, let alone whether and to what extent such conditions were treatable and were treated. Similarly, without expert evidence I can draw no conclusion from evidence of episodes of disorientation as to whether there was any significant cognitive impairment as at 28 March 2008. 69Neither Mr Munro nor Mr McGivern apparently had any concerns about Edmond Wardy's ability to give instructions. At the meeting on 18 December 2007 there was discussion about Edmond Wardy giving a power of attorney to John Wardy and that document was executed by Edmond Wardy when he was again in hospital on 17 May 2008. He then appeared to Mr Munro to be coherent and of sound mind, although in extreme discomfort. I do not conclude that Edmond Wardy was incapable of understanding the nature and effect of the appointment document he signed on 28 March 2008 if it was read to him. 70It was put to John Wardy in cross-examination that he had a very large number of conversations with his father in early 2008 about making plans for the future management of the properties. John Wardy said that such conversations occurred on practically a daily basis. It was put to John Wardy that the reason for this was that his father was confused and had forgotten the content of previous conversations. John Wardy denied this and said that his father's memory and mental capacity were unaffected during early 2008, and that the reason for the numerous conversations with his father was that his father was thinking through the matters under consideration. I accept that evidence. 71John Wardy deposed that in early 2008 he had a discussion with his father at his father's home about the control of the family trust. John Wardy deposed that he said: "The appointor is the most important role to control the trust. It can control the trustee. Kevin Munro said that the appointor can be changed under the terms of the trust deed. He also said that you need to confirm my appointment as director of the companies." His father said: "John, can you deal with this and make sure it's looked after?" He replied: "I will have to look at the trust deed and prepare a document for you to sign. We should get someone to witness the document." A meeting had been arranged for 28 March 2008 with a Mr Mohamed Chmait, a friend of Edmond Wardy's, who did maintenance work on properties. John Wardy said that his father told him that Mr Chmait could be his witness. He then prepared the resolution/declaration document following the wording of clause 14 of the trust deed. The handwritten document includes some interlineations, namely the words "'LINEVALE PTY LTD WARDY SMSF PTY LTD THE EDMOND WARDY FAMILY TRUST' below the words 'RESOLUTION: DECLARATION' and the words of 'of Linevale Pty Ltd'" inserted immediately above the date. John Wardy said that those interlineations were on the document before he gave the document to his father. I accept that evidence. He said that on 28 March 2008 he handed his father the document on their trip to Greystanes where they were to meet Mr Chmait. His father asked him to read it out to him. John Wardy deposed: "I said 'It will make me a co-director of the companies and replace you as appointor to control the trust. I will become the managing director of Linevale.' I then read out the wording as written on the appointment document. I then said: 'If you are happy with it, you can sign it in front of Khalid'. My father said, 'Yes that is good.'" 72The document was signed by Edmond Wardy in front of Mr Chmait who witnessed his signature. Mr Chmait gave evidence that during the meeting, Edmond Wardy said to him in Arabic words to the effect of: "I have just got out of hospital and I want to be able to allow John to be able to do things on my properties. John has prepared this document and I have approved it. I want you to witness me write my signature on it." 73Edmond Wardy then produced the document with handwriting on it and signed it and Mr Chmait witnessed his signature. 74Mr Chmait was not cross-examined and I accept that evidence. Counsel for Sam and William Wardy contend that this evidence shows that Edmond Wardy thought the document only dealt with the appointment of John Wardy as a director because that was the only part of the document that went to John's ability to deal with the properties. This is a possible inference, but there is no inconsistency between what Edmond Wardy said to Mr Chmait and his understanding the full effect of the document. 75I do not think it likely that Edmond Wardy would have signed the document and would have told Mr Chmait that he had approved it if Edmond Wardy had not been satisfied of its contents. I do not think John Wardy would have taken the risk of not reading the contents of the document in full to his father. It is inherently probable that Edmond Wardy would have wished to appoint John Wardy as appointor of the trust. That matter had been discussed in December 2007 with Mr McGivern and Mr Munro. I am satisfied that Edmond Wardy would have wanted control of the trust to pass to that son. He would not have wanted control of the trust to pass to the Public Trustee because he was thinking of removing the Public Trustee as executor of his will. No other family member was involved with the management of the trust properties. 76I accept John Wardy as a credible witness. He was not shaken in cross-examination. He answered questions responsively. I accept his denial that he dealt with the power of appointment towards the end of the document so that his father would not see and appreciate what he was dealing with. I accept his denial that he only read that part of the document to his father dealing with his appointment as a director of the two companies. 77The heading of the document was "RESOLUTION: DECLARATION". It was put to John Wardy that he headed the document in that way so as to make no direct reference to the trust so that if his father started reading the document, he could provide him an explanation about its effect without alerting him to what it really said. John Wardy denied that suggestion and I accept that denial. Counsel also put to John Wardy that the reason he prepared the document providing for Edmond Wardy to sign against the word "Director" and not also against the word "Appointor" or "Assignor" was to conceal the fact that the document contained an assignment of the power of appointment. John Wardy denied that and I accept his denial. 78John Wardy said in the course of cross-examination that he handed the document to his father who looked at it for a while, and when he handed it back he (John Wardy) read the full document to him. He said that he went into detail about all aspects of it. This was in the course of the trip from Kensington to Greystanes. John Wardy said that they pulled over at a delicatessen at Croydon where they had a meal and he explained the document. This was additional detail that did not appear in the affidavit. Whilst I accept that in some cases the omission of detail from an affidavit which is later elaborated on in cross-examination, can affect the credibility of the deponent's story, and whilst I accept that this additional detail does go to the credibility of John Wardy's evidence, I am not persuaded that I should reject his evidence on this account. 79It was submitted for Sam and William Wardy that it can be inferred that Edmond Wardy did not understand the nature and effect of the document dated 28 March 2008 because he refused to sign a general power of attorney in favour of his son in May of that year and required the form of the power of attorney that had been prepared before him to be amended to limit the attorney's powers. Mr Munro prepared an enduring power of attorney to be given by Edmond Wardy in favour of John Wardy. Mr Munro, Mr McGivern and John Wardy attended on Edmond Wardy in the hospital on 17 May 2008. Edmond Wardy said that he was not prepared at that time to give John Wardy an unlimited general power of attorney. The document was altered to provide "Only to be used by my attorney to lease or otherwise deal with tenants of properties owned by me. Not to be used to sign cheques on my behalf." Mr McGivern deposed that at the meeting, Edmond Wardy said words to the effect, "John already does all the banking and looks after the properties. Why is this document needed?" and, "I don't want him drawing big cheques on my personal bank accounts." 80It does not follow from the fact that Edmond Wardy was unwilling to give his son John an unlimited power to deal with his own property that he did not appreciate that the document he signed on 28 March 2008 appointed John Wardy as appointor of the family trust in his place. He limited the terms of the power of attorney because he did not consider that a wider power was needed at that time. Although the change of identity of the appointor had effect immediately, the reason for making the change was to ensure that John Wardy had ultimate control of the trust when Edmond Wardy died or became incapable. I think it probable that neither Edmond Wardy nor John Wardy expected John Wardy to exercise any powers as appointor during Edmond Wardy's life. Nor did he. On the other hand, the power of attorney was required for day-to-day management of Edmond Wardy's affairs. The signing of only a limited power of attorney is not inconsistent with Edmond Wardy's appreciating that the document he signed on 28 March 2008 was an assignment of the office of appointor under the trust, or even, if this were relevant, with his appreciating the potential implications of the assignment. 81In short, I accept John Wardy's evidence as to the circumstances of the execution of the document dated 28 March 2008. It follows that the challenges to the validity of the assignment of the office of appointor to the Edmond Wardy Family Trust fails. Conclusion and orders 82William Wardy did not press other claims for relief contained in his further amended cross-claim. In particular, he did not press a claim for an inquiry and account in respect of the administration of the Edmond Wardy Family Trust by John Wardy in his capacity as a director of Linevale. Nor did he press a contention that the deceased's shares in Linevale or the assets of the Edmond Wardy Family Trust form part of the real estate in the deceased's estate to be dealt with as part of the residue of his real estate. Nor did he press a claim that the trust should be "extinguished". 83Accordingly, I propose to make the following orders in the probate proceedings 2009/321354: 1. Order that the claims for relief in the amended statement of claim be dismissed. 2. Order that the claims for relief in the further amended cross-claim filed by William Wardy and in the amended cross-claim filed by Sam Wardy be dismissed. 3. Order that the probate of a copy of the will of Edmond Wardy dated 7 November 1992 be granted to the NSW Trustee and Guardian (formerly known as the Public Trustee of NSW). 4. Remit the proceedings to the Registrar to complete the grant. 84I will hear the parties on costs. I will also hear the parties if any further orders or different orders are needed to give effect to these reasons, including whether any orders are required in relation to the completion of the interim administration of the estate by Mr Gordon Salier pursuant to the orders made appointing him as administrator pendente lite. I certify that this and the 32 preceding pages is a true copy of the reasons for judgment herein of the Honourable Justice R W White. Date: 28 March 2013 Associate 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. Decision last updated: 28 March 2013