Supreme Court New South Wales Medium Neutral Citation: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer [2013] NSWSC 412 Hearing dates: 13, 14 August 2012 Decision date: 24 April 2013 Jurisdiction: Equity Division Before: Slattery J Decision: The plaintiff has not established that the 17 February 2011 codicil was properly executed in accordance with Succession Act, s 6 - directions made in relation to remaining issues Catchwords: SUCCESSION - Wills, probate and administration - executors and administrators - testator's will made June 2010 - plaintiff propounds and defendant challenges 17 February 2011 codicil - whether the deceased executed the codicil - whether the deceased lacked testamentary capacity to make the codicil - if codicil not admitted to probate, whether, the plaintiff, named executor of the will, and who propounded the codicil, should not be executor of the will. Legislation Cited: Succession Act 2006 (NSW); Probate and Administration Act 1898 Cases Cited: Burnside v Mulgrew [2007] NSWSC 550 Jeans v Cleary [2006] NSWSC 647 Tobaji v National Australia Bank [2009] NSWSC 41; Bowler v Bowler, Supreme Court of NSW (7 June 1990) Young J. Re Hunter (1932) NZLR 911 at 929. Category: Principal judgment Parties: Plaintiff/Cross Defendant:- Neil Ronald Telfer as executor of the estate of the late Lyall Telfer Defendant/Cross Claimant:- Carolyn Telfer Representation: Counsel: Plaintiff/Cross Defendant:- M. K. Rollinson Defendant/Cross Claimant:- C. Carroll Solicitors: Plaintiff/Cross Defendant:- Benjamin Barrak, Barrak Lawyers Defendant/Cross Claimant:- Denis Williams, Whitehead Cooper Williams File Number(s): 2011/283114 Publication restriction: No Judgment 1In the twelve months before Lyall Telfer died on 14 May 2011, he is said to have executed three testamentary instruments, a will on 21 June 2010, a first codicil on 16 February 2011 and a second codicil on 17 February 2011. The testator's dominant concern through this period was to balance the competing claims upon his testamentary bounty of his second wife, Carolyn and the eldest child of his first marriage, Mark. All three testamentary instruments appointed the testator's older brother, Neil Telfer, as executor. 2Neil now seeks a grant of probate of the will and of the second codicil, in solemn form. If the first codicil was properly executed, the parties agree that the second codicil would have revoked it. Carolyn challenges the validity of the second codicil because she claims the testator either did not execute it, or that he lacked testamentary capacity at the time of its execution. Carolyn also opposes the grant of probate of the will to Neil on the basis of his involvement with the testator's execution of the second codicil. Neither the proper execution of the will nor the testator's capacity to make it is challenged. But Carolyn says, Neil is unfit to act as its executor because of his conduct in propounding what she says he must have known was an invalid second codicil. These are the issues for trial. 3In the last twelve months of his life, the testator, more than once colourfully predicted that after his death the tense relationship between Mark and Carolyn would produce, "World War Three". Unfortunately, the testator's words became an accurate metaphor for 12 months of intensely bitter probate litigation following his death. That bitterness was long-standing. But it was aggravated by financial transactions shortly before his death. 4All the parties and witnesses to these proceedings have the same surname. Therefore without any disrespect to any of them, these reasons refer to these family members by their first names. 5A curious feature of this litigation is why it is being conducted at all. Both Neil, the plaintiff and claimed executor of the will and the second codicil, and Carolyn, the defendant and cross-claimant for administration of the estate, accept that Lyall Telfer's estate is insolvent. The estate's only substantial asset is the expected proceeds in the sum of $500,000 from the completion of the deceased's sale of his Northmead residence to Mark. Mark has a claim against the estate for approximately $200,000. And Carolyn has a claim against the estate for about $460,000. 6But for the estate's insolvency, the second codicil would make an important difference to the deceased's distribution of his estate between Carolyn and Mark. The second codicil does not alter a gift to Mark of the testator's plumbing business. 7But the second codicil reduces Carolyn's share of residue. Under the will the testator gives the residue of the estate to Carolyn. The second codicil alters that so Mark receives 50 per cent of the residue. But all this is academic. The estate is insolvent. The real argument between the parties is about who will now administer the estate, not about what is received under it. 8All of this is not quite as irrational as it sounds. The administration of the estate is an important practical contest between Carolyn and Mark. Carolyn fears that Neil's administration of the estate would be biased in Mark's favour. Neil denies this. 9Carolyn is looking ahead. A looming issue in the estate's future administration is whether Carolyn is a secured or an unsecured creditor of the estate for $460,000. Carolyn will seek early resolution of that issue in the estate's administration. She believes she is less likely to achieve that early resolution with Neil than with an independent administrator. But in short, as both parties have large claims against the estate as creditors, neither party trusts the other to administer the estate impartially. 10At a directions hearing in the Probate List, White J anticipated these issues and offered a solution to them. He referred these proceedings to mediation in the hope that the parties might agree on the executorship and administration of the estate. Unfortunately that hope was not realised. 11These reasons now conclude that the deceased did not execute the second codicil. It is not necessary to decide whether he had testamentary capacity at the time. 12Mr Rollinson of counsel appeared on behalf of the plaintiff/cross defendant Neil Telfer, instructed by Barrak Lawyers ("Barrak"). Mr Carroll of counsel appeared for Carolyn, instructed by Whitehead Cooper Williams ("Whitehead Cooper". Lyall, Carolyn and Mark Telfer 13Carolyn and Neil were both very important in the life of the testator, Lyall Telfer. The testator met Carolyn in about 2000. They married in April 2004. The evidence directly and indirectly, indicates high levels of trust, confidence, warmth, support and affection between Lyall and Carolyn. 14But Lyall also placed special confidence in his older brother Neil, especially in relation to his financial and legal affairs. This seems to have been partly a product of their respective birth order and partly a product of Neil's wider life experience as a tertiary educated electrical engineer who had worked in a number of professional capacities, including with government. Lyall ran a plumbing business and respected the broad public sector professional and business expertise of his older brother. 15During the testator's lifetime there was little tension between these two fundamental relationships of the testator's life. But events in the three months before Lyall's death generated the tension that ultimately led to this litigation. To understand the steps to the litigation a more detailed narrative of the Telfer family history is required. 16Carolyn is Lyall's second wife. Lyall's first wife, Ruth, and he had three children, Mark, Kylie and Jonathan. After Lyall and Ruth divorced, he continued to work as a self-employed plumber, with his son Mark involved in his business. The testator's relationship with his daughter Kylie and his other son Jonathan did not appear to be as close as his relationship with Mark. These other two children only appear in one of the deceased's several wills made in the last ten years of his life. 17After Lyall's divorce from Ruth he purchased the house in Northmead ("the Northmead property"), which he owned at his death. Lyall lived at the Northmead property with Mark. Kylie and Jonathan resided with their mother Ruth after the divorce. There was conflicting evidence in the proceedings about the closeness of the relationship between Mark and his father Lyall. Their relationship went through periods of closeness and periods of distance. In 2002 Mark purchased and then occupied the property next door to Lyall's Northmead property, in a residence which will be referred to in these proceedings as "No. 37". Lyall and Mark removed the fencing between the Northmead property and No. 37 to secure off-street parking for the various vehicles used in Lyall's plumbing business. Mark took an active part with Lyall in working in the plumbing business. 18Carolyn and Mark never got on well. Carolyn acknowledged this herself in evidence. I accept Neil's evidence that both Mark and Carolyn made negative comments about one another to him. I infer they had also made similar comments to Lyall during his lifetime. The testator seemed from the statements he made to others to be acutely aware of the tension between those two people who were closest to him. He appeared to manage the family tension around him with patient resignation and good humour, and without diminishing the quality of his relationships with all the people that mattered in his life. Lyall's Wills - May 2003 to June 2010 19In the last eight years of his life, Lyall made three wills, one in 2003, one in 2009 and the final one in June 2010. Both parties accept that the June 2010 will qualifies for admission to probate. As indicated earlier in these reasons, the parties' present contest is only about the second codicil to the June 2010 will. But simple analysis shows that the overall movement in testamentary sentiment through all these wills was towards Carolyn. 20The May 2003 Will. The deceased's will executed on 19 May 2003 nominated Mark as his executor. At the time of this will Carolyn was in a close domestic relationship with Lyall, but they were not as yet married. The May 2003 will gave half Lyall's estate to Mark, one sixth to Kylie, one sixth to Jonathan and one sixth to Carolyn. Lyall engaged solicitors, Panos & Associates to draft and assist in the execution of the May 2003 will. But Neil, an electrical engineer not a lawyer, prepared all of Lyall's wills and codicils after that date. 21After May 2003 Neil was never troubled by doubts that a qualified lawyer, such as Mr Panos, might be able to serve his brother's interest in will making better than he, Neil, could do. He assumed his role with an easy confidence that was palpable in the Courtroom and which appeared to come naturally to an older brother, who had spent years working in a profession, who had informally drafted wills for other family members, and who had solicitors among his acquaintance. Neil held a firm sense of entitlement to assume this important role in Lyall's life. He seemed dumbfounded when he was asked to consider the possibility of referring will drafting for Lyall to lawyer. 22The February 2009 Will. The testator's will of February 2009 emerged from a conversation between Neil and Lyall. Neil and his wife Sandra lived in Canberra and regularly visited Lyall and Carolyn at Northmead. During one of these visits in February 2009, together Lyall and Carolyn showed Neil the May 2003 will and some correspondence from Panos & Associates dating from the time of the May 2003 will. 23Lyall was concerned with Panos & Associates' advice that his May 2003 will may be revoked by marriage. He and Carolyn had married in 2004. He asked Neil to draft him another will. He gave detailed instructions to Neil and asked him to be executor of his estate. He explained his reasons for choosing Neil as executor, "if I appoint Mark or Carol [in this role] it would be World War Three". Carolyn was present during these discussions. Lyall's opinions about her relationship with Mark came as no surprise to her. 24Neil volunteered to prepare another will immediately. His wife, Sandra, is a touch typist. She typed the will on Lyall's desktop computer at the Northmead property whilst they were staying there with Lyall and Carolyn. The will was executed on 27 February 2009. Neil and Sandra witnessed the February 2009 will. Neither Neil nor Sandra were beneficiaries under any of Lyall's wills or codicils. Neil was aware of the importance of beneficiaries not witnessing wills. His position as an executor is not incompatible with witnessing the will: Succession Act, s 10(2). 25The February 2009 will appointed Neil as executor. After disposing of a motor vehicle and the plumbing business to Mark, Lyall gave one quarter of the residue of his estate to each of Carolyn, Kylie, Mark and Jonathan. I accept Neil's evidence that Carolyn was closely involved in all the discussions in relation to this will and was present at the time of its execution. 26The June 2010 Will. By mid 2010 Lyall wanted to make another will. Neil explained that reasons for this were that the family dynamics had changed. This is undoubtedly correct. The June 2010 will represented a significant departure from the deceased's prior expressions of testamentary intention. The June 2010 will was also discussed at the Northmead property during one of Neil and Sandra's visits to see Lyall and Carolyn. As with the February 2009 will, Carolyn was present throughout Lyall's discussions with Neil and Sandra about this will and at its execution. 27Prior to this will Lyall explained to Neil that he wished: to remove Kylie and Jonathan from the February 2009 will; to give Mark the plumbing business; but, to give the Northmead property and the whole of the residue to Carolyn. Neil suggested that Carolyn should perhaps be the executor now that she was to inherit most of the estate. But Neil says that Lyall replied again, in terms I accept as accurate from Neil's evidence, to the effect, "if I did that it would be World War Three. You know what Mark and Carol are like!" 28With Sandra doing the typing, Neil prepared this next will. This will was executed on 21 June 2010 and witnessed by Neil and Sandra. It gave the plumbing business equipment to Mark and the Northmead property and the residue of the estate to Carolyn. Not only was Carolyn present throughout the discussions about and upon execution of the June 2010 will, but no suggestion emerged that she might be excluded from these discussions. Lyall's 2010 Financial Problems and their Solution 29Lyall executed the June 2010 will against a background of financial insecurity. The plumbing business was not generating the revenue that it once did, due to Lyall's increasing ill health, due to tensions with his son Mark, due to Mark's diversions from the business and due to Lyall's age. Lyall's debts were mounting. He and Carolyn were looking to find a way to resolve his financial difficulties. They did so in a sensible commercial transaction. 30Lyall had mortgaged the Northmead property to RHG Mortgage Corporation to provide working capital for his plumbing business and to meet personal expenses. He was making onerous interest payments to service this mortgage. He fell behind and defaulted on payments on the RHG Mortgage. Carolyn offered to assist her husband by making available the equity in a property she owned in her own name at Drummoyne to help re-finance his RHG Mortgage debt through the Adelaide and Bendigo Bank. 31Husband and wife proceeded with this transaction. They obtained legal advice and had their arrangement formally documented. They executed a deed dated 26 July 2010 ("the July 2010 Deed"), the relevant parts of which provide:- "RECITALS A. Lyall's property is currently encumbered by a Mortgage to RHG Mortgage Corporation Limited and a Caveat in favour of Rinker Australia Pty Ltd and the total debts secured by that Mortgage and that Caveat are currently about $337,500. B. Lyall has been unable to service the debts secured over his property and Carolyn has offered to raise the required funds to discharge Lyall's debts by way of taking a loan from the Bendigo and Adelaide Banks in the sum of $400,000, to be secured over her property, and the funds raised to be used to discharge Lyall's debts, on the conditions and terms set out in the Deed. THIS DEED WITNESSES 1. Lyall, through his solicitor, will obtain current payout figures from RHG Mortgage Corporation Limited and Rinker Australia Pty Ltd, based on an expected settlement date of 2 August 2010. 2. Carolyn will, through her solicitor, arrange for the settlement of her Mortgage advance also for 2 August 2010. 3. Both settlements will be arranged if possible simultaneously but otherwise on the same day, such that by close of business on that day Carolyn's Mortgage advance will have been settled and the funds there from firstly applied to discharge the Mortgage and Caveat registered over Lyall's property. The Certificate of Title Folio 9/20060, together with Discharge of Mortgage AB883054 and withdrawal of Caveat AD774593 are to remain in the possession and control of Carolyn's solicitor, who will lodge them for registration, together with the caveat referred to in clause 6(c) hereof. 4. Any remaining funds available from the Mortgage advance to Carolyn will then be used to pay the registration fees on the Discharge of Mortgage and withdrawal of Caveat re Lyall's property and any other costs involved. Thereafter the Certificate of Title for Lyall's property is to be held by Carolyn's solicitor pending the repayment by Lyall of the debt between Carolyn and the Bendigo and Adelaide Banks and reimbursement of the monies paid by Carolyn and Lyall's behalf, and consequent on this Deed. 5. Carolyn will service her loan by the rent she expects to receive from the Drummoyne property, and, if needed, her own wage. 6. In consideration of Carolyn encumbering her property with the Mortgage to Bendigo and Adelaide Banks and making the funds produced thereby available to payout Lyall's debts, Lyall:- a. Undertakes to sell the excavator the subject of the finance agreement with Rinker Australia Pty Ltd and to apply the funds of that sale towards the reduction of Carolyn's Mortgage debt, within 30 days of the date of this Deed. b. Undertakes to sell [the Northmead property], within 12 months of the date of this Deed and to apply from the proceeds thereof all the funds required to firstly repay Carolyn's debt to Bendigo and Adelaide Bank and also to reimburse Carolyn for each of the Mortgage payments which she will have made to Bendigo and Adelaide Bank in that period, and to reimburse her for all of the costs and expenses which she has incurred and will incur in firstly establishing the loan facility, servicing the loan, and then discharging that facility, including all legal costs, registration fees and the like. c. Consents to a Caveat being lodged over the Title to his property, pursuant to this Deed, to secure Carolyn's interest, in it and her entitlement to be reimbursed all the money that she has agreed to raise and pay on Lyall's behalf." 32Lyall did not tell Neil about this July 2010 Deed at this time. Neil says, and I accept, that he only found out about this later and that "it came as a great surprise to me". Neil seemed to the Court to be mildly resentful that Lyall had entered into this transaction without consulting him (Neil). 33Neil says that he found out about this July 2010 Deed only "just before Lyall died or just after it". But on his version of his conversation with Lyall at Westmead Hospital in February 2011 he discussed the effect on Lyall of the July 2010 Deed. So Neil must have been aware of it by the time of the disputed second codicil. 34Lyall's health continued to deteriorate through 2010. He sold the equipment referred to in the July 2010 Deed, clause 6(a). Lyall's obligation to sell the Northmead property under the July 2010 Deed was to fall due in July 2011. 35Not surprisingly Carolyn was keen to ensure that Lyall received adequate consideration for his sale to Mark, when the time came. When sale of the Northmead property had been discussed between Carolyn and Lyall in December 2010 she had decided to commission a valuation of the property. She did this because Lyall and Neil had told Carolyn that if it had to be sold in July that Mark wanted to buy the property. Mark had already obtained his own valuation. Carolyn's 4 February valuation valued the property at $550,000. 36But early in 2011 Lyall's health took a rapid turn for the worse and he was admitted to hospital, where on Neil's case he is said to have executed the two February 2011 codicils. Hospitalisation - January and February 2011 37The deceased's state of health on the date of the second codicil 17 February 2011 is a central issue in the proceedings. It is relevant both to his capacity to execute the second codicil and to his testamentary capacity at the time. Both sides adduced medical evidence about Lyall at this time. But for the present a general description will suffice of the course of the progress of his health as background to the events that led to the two codicils. 38By December 2010 Lyall recognised he would soon have to sell the Northmead property under the July 2010 deed. Neil explains, and I accept, that the couple's general plans were that once the Northmead property was sold they would live in a house in Castle Hill. 39But Lyall was admitted to Westmead Hospital on 2 January 2011. He was an in-patient for exactly two months and was discharged on 2 March 2011. He had a number of debilitating ailments, including gout, muscle atrophy, osteoarthritis, osteoporosis, amyloidosis, hypertension and heart problems. He required intensive treatment. 40Neil and his wife Sandra came up from Canberra and visited Carolyn at the Northmead property between 9 and 12 January 2011. And from there they visited Lyall at Westmead hospital each day over those days. They also made a day trip to Sydney on 19 January 2011 to see Lyall. No codicils were made on either of these trips to see Lyall. 41Neil and Sandra Telfer made another trip to Sydney in mid February 2011 to visit Lyall at Westmead hospital. They again stayed with Carolyn at Northmead. The two codicils were made on this trip. 42Many of the events surrounding the mid February 2011 trip to Sydney are contentious. It is useful to deal with the events of each day, 15, 16 and 17 February 2011 separately. 43The plaintiff, Neil Telfer, bears the onus of establishing the validity of the second codicil. In the contest about the execution of the second codicil the Court has little confidence in the evidence of the two witnesses to the second codicil, Neil and Sandra. There are many contradictions in their evidence and a palpable lack of certainty between them about what happened. I have reached the view I cannot be satisfied the codicil was executed in a manner they both say they witnessed. Applicable Legal Principles - Execution 44The onus of proving that an instrument is the codicil of a testator lies on the party propounding it; and if not discharged the Court is bound to pronounce against the instrument: Burnside v Mulgrew [2007] NSWSC 550, at [13] (Burnside). In this case Neil, the plaintiff propounds the codicil as having been propery executed in conformity with Succession Act s6. The burden continues during the whole case and must be determined upon the balance of the whole evidence; and the defendant does not bear an onus of proof that the codicil is a forgery: Burnside at [60]. Neil and Sandra's First Day in Sydney - 15 February 2011 45Neil and Sandra drove from their home in Canberra to Westmead Hospital on the evening of 15 February 2011. Carolyn had visited Lyall after work earlier that evening, as she often did. Then she went home to the Northmead property, before Neil and Sandra arrived at the hospital from Canberra. 46The events of the evening of 15 February are divided into two parts. The first part is a conversation among Lyall, Neil and Sandra at the hospital. Carolyn, who was not present at the hospital, is in no position to dispute their version of this first part of the evening. Then Neil and Sandra say that certain events involving Carolyn occurred at the Northmead property after they left the hospital. But Carolyn says she was asleep and nothing passed between them. In the matters that Carolyn is in a position to directly dispute, about the night of 15 February, I prefer her evidence. On the other matters, despite the absence of contradiction, I have little confidence in either Neil or Sandra's evidence. 47But Neil and Sandra say, and I accept, they arrived at Westmead Hospital in the evening of 15 February 2011 at about 8pm after driving directly from Canberra. They say, and I accept, that Lyall communicated to them that the Northmead property was soon to be sold to discharge the loan to Carolyn. Neil's evidence is that Lyall proposed the idea of selling the Northmead property to Mark and asked Neil to speak to Mark about buying it before the house was put on the market generally. This is what Lyall wanted. And it was generally consistent with Lyall and Carolyn's future plans which were to move into a small and more manageable place because of Lyall's failing health. I accept that this part of the conversation did occur. Indeed Neil later spoke to Mark about this. Mark ultimately took up the opportunity of buying the Northmead property. 48But Neil and Sandra also say Lyall raised the issue of changing his June 2010 will, saying " I want to change my will. What is the best way to do it?" His reasons for wanting the change were expressed to be "Carol's finances are good and I want to make sure that Mark is better looked after". Neil says that he explained back to Lyall "it would be easier to draft a codicil instead of a new will. That way it is shorter". To this Lyall is said to have responded "can you type it up for me tonight and bring it in tomorrow?" Lyall's general instructions, for what was claimed to be a first codicil to the June 2010 will were to continue his prior testamentary intentions of giving Mark the stock in trade and equipment of the plumbing business. Neil's evidence was that Lyall's instructions for the balance of the estate were "I want to give one third to Carol, one third to Mark and the last one third to be invested in superannuation for Mark's future". Neil says that he agreed with Lyall that Sandra and he would "type something up tonight and bring it to you tomorrow". 49It would be not too difficult to accept Neil's evidence of this conversation, supported as it is by his wife, who gave a very similar account. But Neil and Sandra's inconsistent and unreliable narrative of these three days, 15 to 17 February 2011, caused the Court to doubt even the events of this night as well as what happened the following two days. 50I do not accept Neil's (and Sandra's) version of Lyall's declared reasons for changing his June 2010 will. They do not make sense. Since Lyall's execution of the June 2010 will Carolyn's financial position had not improved. A month after the June 2010 will she and Lyall had joined in the July 2010 Deed by which she advanced Lyall $400,000 to discharge Lyall's debts whilst taking on a liability to the Bendigo and Adelaide Bank. Lyall must have been conscious of this substantial worsening of Carolyn's financial position after the June 2010 will, as he took the benefit of it. Carolyn was a person of modest means before the July 2010 Deed. There was hardly any basis within Lyall's knowledge for him to say to Neil that "Carolyn's financials are good". I do not accept Neil's evidence that he had such a conversation with Lyall in which Lyall gave this reason for changing his June 2010 will. 51Moreover it is implicit in Neil's account of this 16 February hospital conversation that Lyall's relationship with Mark had by then improved, or that at least Lyall perceived that it had. This is to be inferred from Lyall's words "I want to make sure that Mark is looked after", Carolyn describes the poor relationship between Mark and his father Lyall in terms that I accept as accurate. She agreed in cross examination that Lyall "loved Mark very much but Mark didn't give that back to him". She gives no account of that relationship showing special improvement in the period June 2010 to February 2011. Lyall had always wanted to give Mark his plumbing business. He had achieved that in the June 2010 will in a respect that was unchanged by the codicil disputed in these proceedings. Mark was not called to give evidence. Neil lived in Canberra and was not in a position to say that the father-son relationship had improved in this period. I did not find Neil's evidence on this aspect of the conversation convincing and I do not accept that it took place. 52After seeing Lyall at the hospital Neil and Sandra returned to the Northmead property. It had been a long day for them: they had seen Lyall after a three hour drive from Canberra. Neil says that on that evening he and Sandra created the first codicil at the Northmead property. Using the desktop computer in the study of Northmead with "Sandra doing the typing", he downloaded a codicil from the internet and drafted the first codicil to reflect Lyall's wishes. Then he dated it 16 February in anticipation of Lyall executing it the next day. He says in his affidavit "Carol was present at the Northmead property whilst we were drafting the [first] codicil". That statement rather gave the impression to the Court Neil was saying that Carolyn was aware of Neil and Sandra drafting the first codicil that night at Northmead. 53But I find what he said was literally correct: she was present that night. But I accept her evidence that she was asleep. She had spent all day at work on 15 February. She was exhausted and went straight to bed, left the door unlocked for Neil and Sandra, and was asleep when they got home. I accept her evidence that she could not recall speaking to them that night. She certainly did not see them using the desktop computer at Northmead that night. She would not have been concerned to see them using the desktop computer without her express permission as they were "family" but I accept that she did not see that happening. The consequence of this finding is that if the first codicil was drafted that night (and I have such little confidence in Neil's and Sandra's evidence that I am not prepared to find that it was) it was drafted without Carolyn's knowledge on Lyall's home computer. This pattern of drafting without Carolyn's knowledge continued the next night with the second codicil. I infer that this (and the following night) Neil and Sandra engaged in a lengthy period of activity affecting a close family member, Carolyn, using her own home computer, without telling her. 54This lack of openness with Carolyn does not engender confidence in Neil's and Sandra's version. Neither of them says that Lyall asked them not to tell Carolyn. Neil says that she only needed to be told when the final codicil was signed. But I do not find that convincing. Some communication about this subject to the sister-in-law who was hosting them in Sydney would be natural. Neil and Sandra's Second Day in Sydney - 16 February 2011 55Neil Telfer's affidavit account of what happened on the morning of 16 February 2011 could only be described as careful, detailed and deliberate. Neil's affidavit of 13 December 2011 explains that on that morning he and Sandra visited Lyall at hospital "early to assist him with his breakfast". Neil deposes "during breakfast I observed that Lyall was not capable of feeding himself. I also observed Sandra feeding him breakfast". Following breakfast Neil says "I showed Lyall a codicil I drafted". Neil's account clearly links the making of the first codicil with Lyall having breakfast. 56Neil's narrative moves to the making of the first codicil. According to Neil, Sandra read the first codicil to Lyall and then he expressed a wish to sign it, and she then asked Neil for a pen and a magazine to support the first codicil during the signing. Then he says he personally observed Lyall sign the first codicil, which Lyall had great difficulty doing because his hands were swollen and he had trouble moving his wrists. According to Neil, Lyall complained about this saying "it is hard to hold a pen and write". After that Neil and Sandra executed the first codicil as witnesses. Within a short period a wardsman arrived to take Lyall away for an x-ray. 57There are a number of difficulties with Neil's account of what happened on the morning of the 16 February. A curiosity about Neil and Sandra's version of a hospital meeting with Lyall at breakfast time is that the nursing notes make no record of their presence at that time. The Westmead Hospital nursing notes are thorough and well kept. They give confidence to the observer of being a product of a reliable and disciplined record keeping system. I accept them as accurate and complete. There are other entries in these notes about Neil and Sandra visiting Lyall: for example there is an entry for the afternoon of 16 February at 04.30 [related to the Social Work Department] "met with pt [patient] and his brother Neil & sister-in-law Sandra NHP". But there is no entry for Neil and Sandra attending at Lyall's breakfast time that day. An entry at 0415 has him sleeping "during the ward rounds". Another entry at 1130 has "PT [patient] asleep but easily aroused"; and then that he was "reluctant for PT [physiotherapy] but agreed" and then went to physiotherapy. This is not long after the time that Neil and Sandra were arranging for Lyall to execute and for them to witness the first codicil. If they were present at this active time it is odd they are not mentioned. They say they left shortly after Lyall was taken for an X-Ray. But this according to the nursing notes was after Lyall was awaken and encouraged to go to physiotherapy. They do not mention physiotherapy and they deny Lyall was asleep at any time when or after they arrived that morning. Their account does not reconcile well with the nursing notes that the Court has no reason to doubt. This is another reason why I doubt their account. 58This is not to say that they did not visit Lyall on 16 February. They clearly did. The notes show a visit that afternoon. They say they came back at 1.00pm and the notes are consistent with their presence after 1.00pm. They had driven from Canberra. Lyall was very ill. They were keen to see him each day. But I have no confidence in their narrative of seeing Lyall that morning 16 February for him to execute the first codicil. 59Ultimately disputes about the first codicil do not matter other than as to credit because the first codicil was superseded the next day. But this is another part of Neil and Sandra's story in which I have little confidence. 60But on Neil's account Lyall changed his mind about the first codicil. When Lyall was having the x-ray done after the first codicil, Neil and Sandra had lunch together. They say they returned to the ward at about 1.30pm. I accept, because the nursing notes confirm it, that they were in the ward from about that time. Upon their return Neil's account was that Lyall explained to Neil that while he had been waiting for the x-ray he had "thought about the codicil I signed at breakfast today and I want to change it". Neil says he enquired about the change and Lyall told him "I want the part about the superannuation deleted and make it half to Mark and half to Carol". Neil says he responded immediately "OK. I will bring it in tomorrow". 61This conversation was inherently odd and I have difficulties accepting it. After all, Neil and Sandra had just drafted the first codicil and presented it to Lyall at about 11.30am. Lyall had than signed it after Sandra has taken him through it. Now within no more than hour and a half Lyall had changed his mind and had expressed his unhappiness with what he had just signed. Although this increased the gift of residue to Carolyn slightly, from one third to one half, Lyall's rapid change of heart would have been unsettling to anyone concerned whether Lyall was aware of what he was doing. Yet Neil simply says of the amendment,"OK. I will bring it in tomorrow." When Neil was asked whether at that moment he though that might be the time to involve a lawyer he said, "I didn't think that way at that stage. " I am not persuaded that there ever was a first codicil. 62Neil Telfer explained he had drafted wills for a number of people. Even in his experience such a rapid change of mind was "a unique situation for me". If this happened as Neil says, it is surprising that Neil did not then say to Lyall that perhaps a lawyer should now be involved. There was no pressing reason against that course. Neil's failure to react to Lyall's change of mind in an ordinary way is a basis to infer, as I do, that Neil's evidence in relation to the first codicil cannot be relied upon. 63Neil says that Lyall wanted Neil to draft his will and was quite insistent on that course. Much of that can be accepted. But this is all the more reason why someone in Neil's position would have thought cautiously why Lyall was being so changeable. I am not persuaded that there ever was a first codicil and a change of mind. But there was a second codicil. The Evening of 16 February 2011 at Northmead 64Neil and Sandra Telfer undoubtedly returned to the Northmead property on the evening of 16 February 2011. What exactly happened there that evening is one of the least satisfactory parts of their mutual evidence. Their confused and uncertain account of what happened that evening are one of the reasons I find it hard to accept any of their evidence about the two codicils. Neil's equally careful affidavit account of that evening was that using the desktop computer at the Northmead property he and Sandra amended the codicil to reflect Lyall's new wishes. Neil said that he proposed the idea of making a note on the new codicil about Lyall's "difficulty in writing due to his amyloidosis". On Neil's version Sandra is said to have agreed with this, which became the explanation for the words added to the printed form of the second codicil "it is noted by the witnesses that the condition of amyloidosis has caused deterioration in the signature of Lyall Vincent Telfer". 65Neil's affidavit account of drafting the second codicil at the Northmead property on the evening of 16 February explains that he and Sandra discussed Lyall's swollen hand "making it hard for him [Lyall] to write. He say that as a result he suggested to Sandra and Sandra agreed that they should "make a note on the documents about Lyall's difficulty in writing due to his amyloidosis." I accept this conversation probably occurred. The second codicil has written on it in typescript between the testator's signature and the signatures of the two witnesses, the words "It is noted by the witnesses that the condition of amyloidosis has caused deterioration in the signature of Lyall Vincent Telfer." 66Neil and Sandra were clearly responsible for creating the second codicil, including these typed words. But it is odd that the typed second codicil was prepared on the evening of 16 February with the words in it, expressed as they were in the past tense, before Lyall had signed the document. Neil and Sandra were declaring that the signature was expected to be poor before execution. I accept that they were both conscious on the night of 16 February that there would be difficulties with the quality of Lyall's signature the next day. But I am not persuaded that they thought this just because of Lyall's "amyloidosis". The nursing notes show periods of Lyall's drowsiness on 16 February. Whether the reason for this was he was tired or medicated or both is not wholly clear. In my view Neil and Sandra were not confident that Lyall would be fully alert all day the following day. I infer that they knew that if he was drowsy again his signature quality would probably suffer. That is why they made the entry in the draft. 67Sandra's version of what happened on the evening of 16 February at the Northmead property was spare. She said that she assisted Neil with typing the "changes to the codicil" and that she and Neil formed a consensus about adding the words to the draft form of the second codicil to explain the deterioration in Lyall's signature. 68But once they gave oral evidence Neil and Sandra's evidence about the drafting of the second codicil diverged markedly, so markedly that the Court could have little confidence in their account of what happened that night. 69Neil and Sandra gave different evidence about the process by which the second codicil was typed up on the evening of 16 February at the Northmead property Sandra was the typist they both agreed on this at first. But Neil denied that he dictated the second codicil to Sandra. He said that he gave her the first codicil with crossed out and hand-written changes on it. Sandra has no recollection of being given an edited document. She only recalls typing on the basis of instructions "from what Neil had talked with Lyall about", which seems to have been as much her own memory of what Lyall had said, as Neil's. If the second codicil were typed up the way they say that night it is to be expected that the details would have been remembered more consistently between them than they were. 70But then the evidence about who was the typist became uncertain. Sandra was confronted with a letter from Barrak Lawyers to Cooper Whitehead dated 13 October 2011. The letter said that the second codicil was typed by Neil. Sandra agreed she did have discussions with Mr Barrak and "Neil may have typed." Then she said that the 13 October letter was "wrong" because "I think we both did it together." She was so uncertain about the creation of this second codicil I cannot accept her evidence about it, or Neil's evidence that she was the typist. 71Finally, both Neil and Sandra say that Carolyn was not told of the second codicil whilst it was being prepared. But another curious tension in the evidence is that Barrak's 13 October letter tells Whitehead Cooper that the codicil was "typed with the full knowledge of your client". Sandra agreed that this was wrong. Perhaps Barrak made an error. But this certainly seems like the kind of deliberate and positive statement that would only be made on instructions, suggesting that Neil and Sandra's version has changed in this respect. Neil and Sandra's Third Day in Sydney - 17 February 2011 72Neil's affidavit account of the morning of the 17 February 2011 was that he and Sandra returned to the hospital as he explained "to assist Lyall with his breakfast". After breakfast Neil says Lyall signed the second codicil. He recounts a signing ceremony similar to that of the previous day, with Sandra reading the codicil out to Lyall, who then approved of what was read to him. Afterwards Lyall is said to have signed it, placing the second codicil on a magazine for support after which Neil and Sandra signed as witnesses. Neil says he observed that Lyall's "wrists were stiff and tight" and that Sandra reassured Lyall to "just take your time, it will be alright". After signature Neil says he was able to shred the first signed codicil "as it was no longer required, and to avoid any confusion". 73The form of the second codicil as apparently executed on 17 February is set out below:- "CODICIL Codicil of Lyall Vincent Telfer This codicil is dated 17 day of February 2011, and is made by me Lyall Vincent Telfer of 39 Hammers Road Northmead in the state of New South Wales. I confirm my will dated 21 June 2010 in all respects except that I change the following clauses; 1) Delete Clause 6 and Clause 7. Insert the following replacement clause: 2) Clause 6a - MY Executor shall hold the residue of my estate in trust for the following; (a) as to one half share thereof for my wife Carolyn Nancy Telfer (b) as to one half share thereof for my son Mark Andrew Telfer SIGNED by the Will Maker of this codicil in our presence and the in presence of each other. Lyall Vincent Telfer It noted by the witnesses that the condition of amyloidosis has caused deterioration in the signature of Lyall Vincent Telfer. (signature) (signature) Witness Witness Sandra Jean Telfer Neil Ronald Telfer" 74Although Neil and Sandra's account of what passed between them and Lyall on the morning of 17 February is uncontradicted, I find that the rest of their account is so unreliable that I do not accept their version of what happened that morning. 75But there are other reasons not to accept their version. They say they were there to help Lyall with his breakfast that day but they are not mentioned in nursing notes that morning. 76Neil and Sandra both say that they observed Lyall sign his own signature. Although his wrists were said to be stiff and he was encouraged to take his time, he still signed himself according to Neil and Sandra. They deny physically helping him sign. But both handwriting experts agree that there is evidence of "pen lift" in the signature on the second codicil. I find that is the case. I accept that "pen lift" in a signature where an expert does not expect to see them can be evidence of "simulation" or "tracing". I am not satisfied that the signature on the second codicil could have been written consistently with Neil and Sandra's version Informing Carolyn 77Carolyn was not present for the signing of the morning of the 17 February 2011. She was at work in her job in a local pharmacy. She did not know that the second codicil was being signed. Neil's version includes an account of how Carolyn was told about Lyall's execution of the second codicil. I do not accept his account but here is what Neil says was said:- "65. On or about 17 February 2011, I had a conversation with Carolyn in the presence of Sandra. During the conversation, I said words to the following effect: 'Lyall asked me to help him change his Will. Mark is still getting the plumbing tools but the balance of the Estate will be shared equally between you and Mark.' 66.I observed that there was little or no response from Carolyn." 78Sandra generally supported Neil's account of telling Carolyn about the second codicil. But Neil and Sandra's evidence was not credible either in the way that it was given, in comparison with Carolyn's evidence, or on the objective probabilities. 79Neil and Sandra's account is inherently improbable. They both understood in February 2011 that Carolyn thought she was entitled to the benefits that the June 2010 will actually conferred on her. Carolyn too was aware of that June 2010 will. She had been present when Lyall had discussed and executed it, with Neil and Sandra. Neil's alleged statement to Carolyn on the evening of 17 February 2011 contained confronting news for Carolyn: without consulting her, Lyall had just executed a codicil reducing her entitlements to the residue of Lyall's estate by 50 per cent. I do not accept that Carolyn made "little or no response" to this communication. Carolyn's passive acceptance of this news is improbable at several levels. 80Neil's news was shocking for a wife. Lyall was changing the habit of the February 2009 and June 2010 wills in which he had involved her in both will drafting and will execution. Moreover Carolyn's guests at the Northmead property, Neil and Sandra had carried through this second codicil making activity over two days using Lyall's computer at the Northmead property through to the point of final execution, without her knowledge. 81I accept Carolyn's denial that Neil and Sandra had not told her about the second codicil on 17 February 2011 or any time thereafter. She says that had she been told that night of the second codicil she would have sought a copy of it and then consulted a solicitor. I accept that this is what she would have done if told about the second codicil. 82Some such request from Carolyn in response to such news from Neil on 17 February was likely. Neil and Sandra explained this anomaly by saying that Carolyn was emotionally distraught. She may have been. She candidly admitted in cross-examination that after Lyall's death "I have been mostly upset for quite a long time" and "Lyall's death really took to me badly". But it is unlikely that she was so constantly distraught between 17 February 2011 and Lyall's death on 14 May 2011 that she would not have reacted to this startling new information at some time in some way. She did not ask for a copy of the second codicil. She did not consult a solicitor. She did not raise the matter again with Neil or Sandra. She did not raise it with Lyall who she saw daily in hospital and at home until his death three months later. Moreover, she did not strike the Court as someone who would become so overcome with emotion for two months that she would not act rationally on Neil's news to her. 83Equally importantly Lyall did not raise it with her. A man who had welcomed his wife's presence on both will making occasions in February 2009 and June 2010 would probably have asked for her presence or explained to her before his death why she had not been involved, and why his testamentary intentions respecting her had changed. 84With limited exceptions, I accept Carolyn's evidence about her relationship with Lyall: "Lyall and I discussed things all the time when he was aware. We discussed things. We never kept secrets and he told me what was going on and I would tell him what was going on." The exceptions relate to Lyall's 31 March 2011 execution of a contract for sale of the Northmead property to Mark. Carolyn was not precisely aware of this until after Lyall's death. But she was generally aware that the property was being sold to Mark for about $500,000. And Lyall had said to Carolyn before his death that Mr Barrak (who acted in part at Neil's direction on the sale) had gone to the nursing home where Lyall was then convalescing to have him sign the contract of sale. All Lyall could remember of this to Carolyn was "I've signed something but I don't know what it is". Carolyn let this go. But through her solicitors as outgoing mortgagee she took an interest in this sale before Lyall died. Some other of Lyall's business was not discussed with her at the hospital. But his previous wills had been discussed with her. 85But Neil argues that Carolyn's lack of response to his short explanation to her about the second codicil is quite credible. Neil argues that it must have been evident to her by then that the terms of the will would probably be academic. It is true that Carolyn understood that the effect of the July 2010 Deed was that "I [Carolyn] would get my money back" and "from what I [Carolyn] could gather from Neil...the creditors or whatever was left over, would go - the rest of the money would go to them." 86There are several answers to this argument. First, it is not at all clear that this was Carolyn's understanding of her possible entitlements in February 2011: due to the vagueness of the question "at this time" the form of her evidence in answer is equally consistent with Neil explaining this to her after Lyall's death. Secondly, I find she was still interested in the disposition under Lyall's will despite the existence of the July 2010 Deed. She had suspicions in July 2011, as she did at the time of giving evidence, about Neil's influence over her husband. She would have been very interested to know what had passed between Neil and Lyall on this subject. Thirdly, as indicated above, I accept her evidence that if Neil had told her about the second codicil she would have asked for a copy of it and consulted a solicitor about it. 87Sandra's version of how Neil explained to Carolyn later on 17 February that Lyall had made a codicil that day is unconvincing. Without the benefit of her affidavit before her in the witness box, she thought that Neil said to Carolyn on this subject words to the effect "Lyall has made a codicil to the will" and "I thought I would let you know". She could not recall Carolyn reacting to this or asking any questions. Then she added that Neil "possibly said to [Carolyn] that it was part to [Carolyn] and part to Mark." Neither Sandra's shorter or longer version of this conversation accords with what I find Carolyn would have been likely to do in the face of such news if she had received it that day: She would have asked for more information, and then for a copy of the document Custody of the Second Codicil 88Neil kept custody of the second codicil. This was a departure from Lyall's treatment of Lyall's three previous wills in 2003, 2009 and 2010, all of which had been left in Lyall and Carolyn's custody. Especially as Neil was not an independent legal practitioner it is to be expected that, even as a matter of courtesy that the newly made codicil would be left with Lyall, or if that was unsuitable given his condition, that it be given to Carolyn as soon as it was executed. 89One of the remarkable omissions from the conversation that Neil and Carolyn say that they had with Carolyn on 17 February was that neither of them says that they offered the document that Lyall had just executed to Carolyn to be kept with the June 2010 will, which was already in her custody. The second codicil makes little sense without the will. It was logical that they be kept together. If the codicil had been executed on the morning of 17 February and was available that day as they say it was this was the natural thing to do. 90That fact, that the original was not offered to Carolyn that day, is another reason why I doubt Neil and Sandra's version that it was executed that day, as they say it was. Moreover they did not offer it to her at any time before Neil's death. From Leaving Hospital to Lyall's Death 91Both Carolyn and Neil played an increasingly prominent part in Lyall's financial affairs between his leaving hospital on 2 March 2011 and his death two months later on 14 May 2011. His health was deteriorating in this period and he needed greater intervention in his life. 92By late March 2011 it was clear that Lyall could no longer be cared for at home. He was transferred to the Anglican Diocese of Sydney Retirement Villages at Castle Hill on 28 March 2011. 93Just before Lyall went into the Retirement Village Neil says, and I accept, that he had a conversation with Lyall about a power of attorney. Lyall explained to Neil that he [Lyall] had agreed to sell the Northmead property to Mark for $500,000 to "achieve a quick sale so I can pay off the debt to Carol", without paying agent's commission. Lyall further explained that even though he had given Carolyn a power of attorney, he was "concerned that Carol is not coping well". So Lyall's idea was to give Neil a specific power of attorney to sell the house to Mark. 94Lyall signed the power of attorney authorising Neil to sell the Northmead property. Indeed he signed two powers of attorney, one on 26 March 2011 (signed at Auburn Hospital) and another on 7 April 2011. 95Neil managed the legal and mechanical aspects of the sale of the Northmead property. He says he kept Carolyn informed about the steps he was taking. I accept his evidence on this. 96Neil's efforts resulted in a contract for sale of the Northmead property from Lyall to Mark on 31 March 2011. He arranged for Lyall to sign this contract for sale on 30 March 2011. Contracts were then exchanged through the solicitors on 31 March 2011. A deposit of $25,000 was paid upon exchange. I accept Neil's evidence that Carolyn was aware of the exchange taking place. I do not accept the points of her evidence where she says she was unaware of the exchange of this contract before Lyall's death. It was clear that her solicitors, Whitehead Cooper Williams were writing to Barrak Lawyers about settlement payment figures. Carolyn must have known that contracts had been exchanged. 97The Lyall - Mark contract for sale was subject to a special condition that Mark's contractual obligations were conditional upon him selling his neighbouring property at No. 37. Mark arranged for sale of No. 37, exchanging contracts with the purchaser on 28 April 2011, with a scheduled settlement date of 27 May 2011, the same day as settlement of Mark's sale of No. 37. 98Neil kept Carolyn informed of the settlement date and through her solicitors on 9 and 11 May 2011 she provided indicative payout figures to enable settlement to proceed. It seemed to be assumed by the solicitors for both Carolyn and Mark that the terms of 27 July 2010 deed meant that she was in a position somewhat like an outgoing mortgagee. Her participation and consent was necessary to effecting settlement on 27 May 2011. 99But before settlement could be effected Lyall died on 14 May. And then events shortly after Lyall's death caused a severe deterioration in the relationship between Carolyn and Neil. Neil asked Carolyn to vacate the Northmead property on 20 May so the settlements could proceed on 27 May. This was only eight days after Lyall had died. It is unclear on the evidence whether any attempt had been made to defer the settlement date of Mark's sale, or for him to make other temporary arrangements to accommodate the recently widowed Carolyn at this time. But I accept Carolyn's evidence that Neil "told me that it would be best for my interests to move out so Mark could move into 39 because he had nowhere else to live". Carolyn ended up living at the house of one of her grandchildren, which caused her understandable resentment at Neil. After Lyall's Death 100Apart from correspondence about settlement of the Northmead property sale, the correspondence between lawyers after Lyall's death on 14 May was conducted on Neil's side at first, as though the second codicil was unknown to him. Just why this was so has not been satisfactorily explained. 101Two days after Lyall died, on 16 May, Carolyn's solicitor. Whitehead Williams wrote to Neil's solicitors Barrak asking in light of Lyall's death on Saturday 14 May open ended questions "whether or not Mr Lyall Telfer left a will and whether you hold that will and the identity of the executor named in the will." This letter did not assert that Neil had told Carolyn of a will or codicil in February and is consistent with Carolyn's version that Neil had not told her on 17 February that Lyall had executed a codicil to the June 2010 will. If the second codicil were readily available to Neil on 16 May it is to be expected that in Barrak's reply to this letter their existence would be revealed. But that's not what happened. By 18 May Carolyn had given Whitehead Cooper a copy of the June 2010 will. They wrote again to Barrak on 18 May. Whitehead Cooper sent the copy of the June 2010 will to Barrak and commented that there may be a difficulty in Neil being an executor, as he was a witness to that will. In a further letter the same day Whitehead Cooper withdrew this objection to Neil taking probate of Lyall's June 2010 will, in light of Succession Act 2006 s 10. 102Barrak replied on 20 May asking about the June 2010 will and declaring that "we have instructions to obtain Probate." No mention is made of the second codicil, which was then in, and remained in, Neil's possession since it was executed. 103On 20 May Whitehead Cooper correspond again about the Northmead property and the June 2010 will. Consistently with Carolyn's case again they do not mention the second codicil. 104Then Barrak did not reply for a month. On 22 June they informed Carolyn's solicitors of the second codicil. Their letter "advises as follows" and then goes on to reveal the existence of a codicil executed on 17 February. The letter is wholly consistent with Barrak writing on the basis they were revealing new information to Whitehead Cooper about the codicil. If Neil believed Carolyn was already aware of the codicil from 17 February his solicitors' correspondence does not assert or assume her alleged awareness. This correspondence supports the inferences, which I otherwise draw, that: (1) Carolyn was not aware of the existence of the second codicil at the time of Lyall's death; and (2) Neil was conscious at the time of Lyall's death that Carolyn did not know of the existence of the second codicil. 105Carolyn contends that I can also infer from this that the second codicil was a fabrication. I do not have to go that far. But I do infer that if it was created before Lyall's death that Neil was not confident about asserting its existence to Carolyn. This is another reason, in my view, for doubting it was excuted in manner that Neil claims. The Expert Handwriting Evidence 106To this factual picture on the issue of execution, there is to be added the expert handwriting evidence. The Court was much assisted by two experts, Mr Stephen Dubedat, whose expert evidence was adduced in Neil's case. The other expert, Mr Christopher Anderson, gave evidence in support of Carolyn's case. Their respective reports were tendered and they gave evidence in a joint experts' session. 107But before the expert evidence is considered, as the tribunal of fact, the Court is entitled to make its own comparison between the handwriting that is disputed and admitted; although of course, the Court should pay particular regard to any expert handwriting testimony: Jeans v Cleary [2006] NSWSC 647 at [157] and Tobaji v National Australia Bank [2009] NSWSC 41 at [116]. 108The experts undertook the usual practice in a case such as this of comparing the disputed signature of the testator with his signature on other undisputed documents. Although to the Court the disputed signature looks quite different to the undisputed specimens I was certainly not confident to draw that conclusion on my own and have paid regard to the expert evidence on the subject. Attached to these reasons in Schedule A is a reproduced copy of the disputed signature and in Schedule B are two samples of the undisputed signatures. The first undisputed sample is Lyall's signature on the July 2010 Deed. And the second is taken from a credit card and was signed in December 2010. They are items 3 and 4 in Mr Anderson's Appendix C. The disputed signature and the undisputed signatures look quite different to the lay eye. 109Both experts agreed that their relevant judgments took place in accordance with the principles stated by William Harrison in "Suspect Documents and their Scientific Examination": "the rule is simple - whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting and whose presence is not capable of reasonable explanation." A number of dissimilar features fundamental to the structure of the handwriting appear between the questioned signature and the sample signatures. These dissimilarities in my view create a compelling inference that the questioned signature could not be said to be of common authorship with the specimen (undisputed) signatures. 110The specimen signatures that Mr Anderson used were written over a period between June 2010 and March 2011. They were signed on hospital medical records in January through March 2011. They include credit cards and the June 2010 will. Mr Anderson found and I accept that the specimen signature signed between June 2010 and December 2010 all appear to be written "with reasonable speed, fluency and pen control". But nevertheless exhibiting a range of natural variation, despite having consistent or habitual features forming their construction. 111Consistent with the medical evidence that Lyall was very ill especially in January 2011, the specimen signatures taken about mid-January 2011 show poor fluency and pen control. But the normal writing habits are still either fully or partially present in the mid-January 2011 specimen signatures. But then the specimen signatures signed between February 2011 and March 2011 are more like those signed in the second half of 2010, showing a reasonable degree of speed, fluency and pen control, but nevertheless with the same consistent writing habits. 112In summary, Mr Anderson's conclusion was that despite the variations within the specimen signatures which are in part accounted for by Lyall's health fluctuation, there was a consistency in the writing habits evident within them, with only understandable variations. Mr Anderson's opinion was that in contrast the questioned signature was inconsistent with many of the habitual features of the specimen signatures. He concluded that there was very strong support for the proposition that the author of the specimen signatures did not write the signature on the questioned documents, the second codicil. I accept his reasoning despite the criticisms that Mr Dubedat made of his work. 113On a number of measures of similarity/dissimilarity the questioned signature is inconsistent with the specimen signatures in ways that they are generally consistent with one another. It is not necessary to mention all of the features that Mr Anderson and Mr Dubedat debated. Some of the more notable ones were the following, and can be seen from the signatures in Schedules A and B. (a)The staff of the "T" formation has a distinctive "s" like curve movement on all the specimen signatures, whereas on the questioned signature it is just a bowed movement. For example, both the specimen signatures in Schedule B show this feature. (b)The habit on the specimen signatures is for the "T" formation to have an eyelet movement at the apex of theletter and a rounded to triangular-like movement to terminate the letter. Most of the specimen signatures have this feature but on the questioned signature there is an angular change in pen direction at the apex of the letter "T" and an angular and elongated movement to terminate the letter. (c)The eyelet movement terminating the "f" formation which connects to the "er" formation tends to be a small or even a blind eyelet movement, whereas on the questioned signature it is a relatively large triangular-like movement. (d)The "er" movement, where is it formed legibly is formed fairly close to the "f" formation on the specimen signatures, whereas on the questioned signature it is formed by a fairly long concave stroke some distance from the "f" formation. This difference is quite clear between the Schedule A and Schedule B signatures. (e)Lyall Telfer's habit was to have a full stop to complete his signature. Not all the specimen signatures have a full-stop, but for those that do the full stop is a separate movement and tends to be spaced some distance away from the end of the 'r' formation of the specimen signature. But on the questioned signature the full stop appears to be connected to the "r" formation and sits very close to it. 114Apart from these individual features there were four more general characteristics that of the specimen and questioned signatures that deserve comment. First, I accept Mr Anderson's conclusion that there is little pictorial similarity between the questioned signature and the specimen signatures. "Pictorially similar" means that the questioned and specimen signatures have some level of pictorial resemblance that is observable and cannot be attributed to coincidence or chance. The lack of pictorial similarity raises the hypothesis that the specimen and questioned signatures either had different authors or that the questioned signature was written in a different manner to the normal manner of signing. Of course the latter hypothesis could be supported in Lyall's case by his illness. But I accept Mr Anderson's logic in this case that many of the specimen signatures, which were written during the more severe stages of Lyall's illness in January 2011 still show the habitual features of the other specimen signature which are not present in the questioned signatures. This tends to displace the second hypothesis that because he was ill Lyall wrote the questioned signature differently. And there is no basis to support a conclusion that Lyall would have deliberately written his signature on the second codicil differently from his normal signature. 115Secondly, the questioned signature exhibits some evidence of the indicia of forgery. In this instance, a number of pen lifts were observed in unusual places in the letter formations: after the kick-like formation at the commencement of the "T" formation; in the apex of the eyelet movement forming the cross bar of the "f" formation; at the apex of the "f" formation; and in the eyelet of the "r" formation. Mr Dubedat in contrast admitted it was difficult to determine whether or not a pen lift had occurred on a particular signature but in this case could not see clear evidence of pen lift and thought that a faulty pen may be responsible. But in my view a faulty pen making some of the stray marks on the second codicil is purely speculation and I prefer Mr Anderson's evidence that the pen lift was located at places that one might expect to find it in a forged signature. 116Moreover the pen lifts in unusual places create a rather implausible hypothesis. Given Lyall's illness, the pen lift could perhaps be accounted for logically by his illness and poor pen control. But he nevertheless was able to place his pen back on the paper in the exact location where it had been lifted from the page leaving no visual evidence of the pen lift. I agree with Mr Anderson's conclusion that considering all the features of the pen lifts in this case they are more consistent with forgery than the product of illness. If they were the latter, one would expect to find a much messier signature where the pen lifts were more obvious. 117Thirdly, the questioned signature overall is notably smaller in size to any of the specimen signatures, whether the specimen signatures were signed in good health or in poor health or whether the specimen signatures were signed in awkward situations such as on a credit card or more comfortable situations such as with the July 2010 deed. The specimen signatures are generally notably larger. This too is not readily accounted for by Lyall's illness because the three signatures on 12 January, close to the height of his illness when he was having the most difficulty in writing, were all of a normal size. Mr Dubedat did not regard the issue of the size of the signatures as being particularly significant. But again on this I prefer Mr Anderson's evidence. 118Fourthly, the questioned signature is above the base line for signatures on the page. This is another signing habit in which in for the specimen signatures the signature is generally on the base line. This is another habit which Lyall adhered to during times of good health and ill health, but which is different in the questioned signature. I accept Mr Anderson's conclusion that it is another indicator of the questioned signature not being Lyall's - that the questioned signature was not written by the same person as the specimen signatures. 119In summary the handwriting evidence supports the conclusion that the signature on the second codicil purporting to be that of Lyall Telfer was not his signature and I so find. The authorities do not require me to find that there was a forgery or who was responsible for the forgery. But, it is difficult to escape the inference that if this was not Lyall Telfer's signature that the plaintiff who propounds it as Lyall's signature, Neil Telfer, must have been aware that it as not and I find that he was so aware. If Lyall's purported signature on the second codicil was not his actual signature and the only account advanced of Lyall's signature being appended to the document has Neil and Sandra as the witnesses there as no room to conclude that somehow by accident and without their knowledge the document was signed by someone other than Lyall. 120There are other criticisms of Mr Anderson's evidence advanced by Neil, who asked the Court to prefer Mr Dubadet's evidence. But these were issues of peripheral detail that do not displace Mr Anderson's hypothesis above which I accept. Testamentary capacity 121It is not necessary to decide the question of testamentary capacity. It is only necessary to decide that question, were I to conclude that the signature on the second codicil was Lyall's. I have not concluded that. There seems to be artificiality in attempting even to decide the question of testamentary capacity in the alternative. I am not persuaded that any testamentary act occurred in which Lyall signed the second codicil. It seems artificial to now attempt to decide whether Lyall did or did not have testamentary capacity. The issue in the event is clouded by considerable uncertainty. The Court heard expert evidence from two doctors, Dr Spencer, the testator's treating rheumatologist and an expert Dr David Leaf, who is a general practitioner and a senior registrar in emergency medicine and a lecturer at the University of New South Wales in primary care. Dr Spencer concluded that Lyall was of sound mind, memory and understanding: Bailey v Bailey (1924) 34 CLR 558; and Bull v Fulton (1942) 66 CLR 295. Dr Leaf disputed this conclusion. The issue is complicated by Carolyn's own evidence about how changeable Lyall's mental state was even within one day. But in the result it is not a matter I have to decide. Conclusions and Orders 122I have concluded that Lyall Telfer was not the author of the signature on the second codicil. But it seems that the second part of these proceedings as to whether or not Neil should be permitted to take up probate of the June 2010 will can only in fairness to Neil be argued in circumstances where he has seen and reviewed the findings of this judgment and had an opportunity to put submissions on the issue of the executorship in light of those findings. 123This Court possesses an inherent power to pass over an executor: Bowler v Bowler, Supreme Court of NSW (7 June 1990) Young J and Probate and Administration Act 1898 s74. Although no general rule can be laid down, misconduct will render a named executor incompetent and entitle a court to pass him or her over: Re Hunter (1932) NZLR 911 at 929. Before the Court considers whether or not to exercise that power in this case, a brief opportunity should be given to Neil to consider these reasons. There may also be arguments about costs and other consequential matters to consider. 124Accordingly I direct the parties within fourteen days to exchange written submissions on all remaining issues in these proceedings. 125The parties can arrange with my associate for the matter listed before me for final argument. ********** SCHEDULE A SCHEDULE B 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: 02 May 2013