Supreme Court New South Wales Medium Neutral Citation: Byrne v Rogers & Anor; Estate of Jeffrey Norman Rogers [2013] NSWSC 511 Hearing dates: 5-8 February 2013 Decision date: 10 May 2013 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to para [93] of judgment. Catchwords: SUCCESSION - wills, probate and administration - application of Briginshaw standard to alleged destruction of will - whether evidence supports finding that deceased made a new will that has not been found Legislation Cited: Succession Act 2006 Evidence Act 1995 Cases Cited: Pemberton v Pemberton (1807) 13 Ves Jun 290; 33 ER 303 Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Philip Calvert Byrne (Plaintiff) Mark Rogers (1st Defendant) Alexandria Elizabeth Byrne (2nd Defendant) Representation: Counsel: E Cohen (Plaintiff) J Gahagan, solicitor (1st Defendant) W F Brown (2nd Defendant) Solicitors: File Number(s): 2010/431587 Judgment 1HIS HONOUR: These proceedings concern the estate of Jeffrey Norman Rogers who died on 25 December 2010 aged 64. Mr Rogers did not marry and had no children. He was survived by his brothers, David and Mark. Mark Rogers seeks a grant of letters of administration of the deceased's estate on the basis that he died intestate. His brother David consented to that application. David Rogers survived Jeffrey but has since died. 2Jeffrey Rogers made a will in 1992 and a later will on 19 December 1994. The 1994 will revoked all former wills. By his 1994 will, in the events which happened, he appointed the plaintiff, Mr Philip Byrne, as executor and left the whole of the estate to Mr Byrne. Mr Byrne seeks a grant of probate of that will. 3Philip Byrne had a daughter, Alexandria (or Alex), to his former partner, Beverley Byrne. She is usually called Alex and I will so refer to her in these reasons. The will of 19 December 1994 provided that if Philip Byrne did not survive Jeffrey Rogers by 30 days the estate was given to Alex if she survived the testator and attained her majority. It further provided that if Alex did not survive the testator, or did not attain her majority, the estate would pass to the Aids Trust of Australia. 4Alex contends that Jeffrey Rogers made a later will leaving his estate to her. No such will, nor any copy of such a will, has been produced. She submits that the most likely explanation is that Jeffrey Rogers made the will and did not destroy it himself, but that the document was removed from his house by Philip Byrne or his partner. She seeks an order that there be a grant of probate or letters of administration of a missing will of Jeffrey Rogers dated on or about 30 September 2009 to her as the sole beneficiary of the missing will. 5Mark Rogers supported the case propounded by Alex Byrne. 6If I found that the deceased made a later will that left his estate to Alex Byrne it would follow that the 1994 will was revoked. Because no such later will has been produced, there is a presumption that it was destroyed by the deceased with the intention of revoking it. That is a rebuttable presumption of fact. The strength of the presumption depends on the circumstances. Revocation of a later will would not revive the 1994 will (Succession Act 2006, s 15). If the presumption of revocation of such a later will was not rebutted, then the estate would pass on intestacy. 7Mark Rogers believes that Jeffrey Rogers intended to leave his estate to Alex. If a grant of letters of administration were made to him on intestacy, he believes the estate should nonetheless pass to Alex to give effect to that intention. He said that if a grant were made to him, he would be guided by legal advice and if his legal advice was that he had to account for 50 per cent of the net estate to the executor of his brother David's estate, then he would do so. 8Much of the affidavit evidence would have been inadmissible if objected to. The usual order for hearing was made. No objections to affidavits were served or provided to my associate in accordance with that order. I refused to allow objections to be taken at the hearing. Had such objections been allowed the consequence would either have been that evidence in chief of both parties would have been greatly attenuated with the consequent risk of injustice, or a very large number of witnesses would have been examined orally in chief to elicit such admissible evidence as they could give. The case would not then have finished in the time allotted. I have given such weight to the evidence that was not objected to, but would have been inadmissible had it been objected to, as I considered it deserved. Background 9At the time he signed his will of 19 December 1994 Jeffrey Rogers also signed a document addressed "To Whom It May Concern" explaining why he had made no provision in his will for his brothers. In that document he stated: "Neither of them have provided me with any financial support, nor have I sort [sic] such financial support from them. They have not accepted my sexuality and have treated me in a homophobic and insulting way." 10As can be seen from this document, Jeffrey Rogers was homosexual. He had a wide circle of friends. It appears from evidence given by more than 20 witnesses that he freely discussed what will he had made or what his testamentary intentions were. By almost all accounts he was meticulously tidy and organised. Many of his friends were women in a relationship described as gay, for whom he worked as a cleaner or as a cook, or as a housekeeper, and with whom he is said to have had revealing discussions about his relationship with Alex Byrne and his testamentary intentions. 11Philip Byrne said that he and Jeffrey Rogers had been friends from about 1985. They shared a house in Wilga Avenue, Dulwich Hill between 1995 until some time in 1999 and in Flers Avenue, Earlwood between approximately 1999 and 2003. They had been close friends before then as appears from the will of 19 December 1994. 12In about 1991, Philip Byrne entered a de facto relationship with Beverley Byrne, Alex's mother. Beverley Byrne said that he rescued her from a violent relationship with her then girlfriend. Their daughter, Alex, was born in September 1991. They were both friends of Jeffrey Rogers. Philip Byrne and Beverley Byrne separated when Alex was about four, that is, in about 1995. Philip Byrne then resided with Jeffrey Rogers in Wilga Avenue, Dulwich Hill and Flers Avenue, Earlwood until the early 2000s. In about 2000 or 2001, he had a de facto relationship with an Anne Doran. Jeffrey Rogers disapproved of this relationship. He considered that Philip Byrne was not properly fulfilling his obligations as Alex's father. Philip Byrne's relationship with Anne Doran finished by about 2004. In about 2003 Mr Byrne commenced a relationship with a solicitor, Melissa Benn, and lived with her from late 2003 or early 2004 until about February 2008. Jeffrey Rogers did not approve of that relationship. 13Jeffrey Rogers had a close relationship with two girls who were children of his friends. Alex Byrne was one of those girls. The other was Sigrid May (called Siri) who is the daughter of a Dr Lis Young. Dr Young regarded Mr Rogers as her closest friend and had frequent and close contact with him. Both Dr Young and Siri May gave evidence that Jeffrey Rogers told them he had left his estate to Alex. I deal with this further below. 14There is no dispute that it would be consistent with Jeffrey Rogers' feelings towards Alex that he would have made her the sole or major beneficiary of his estate. The closeness of their relationship was not in issue. Philip Byrne accepted that Jeffrey had got to know Alex very well and loved her dearly. 15Jeffrey Rogers purchased land at Tempe on which he constructed a house. This was a long-term project. Philip Byrne recalled that he first started building the house in 2001. Its construction was not finished at the time of Jeffrey's death, but it was perfectly habitable. Jeffrey moved into the house in about 2003. Evidence about Jeffrey's testamentary intentions, at least as they concerned inheritance of the house, was given by a number of persons engaged in the building work. 16The first and main question is whether I should be satisfied on the balance of probabilities that Jeffrey Rogers made a will after 1994 that named Alex Byrne as the sole or major beneficiary of his estate. Statements by Jeffrey Rogers that his estate was left to Alex Byrne 17Alex Byrne deposed that before her 18th birthday she learned that Jeffrey Rogers was to go into hospital to have an operation. She deposed that on the night before he was to go into hospital Jeffrey Rogers showed her a document and told her it was his will. She took no notice of the details. She recalled that the document was typewritten and a couple of pages long. She refused to look at it. She said, "This is ridiculous. I don't need to be looking at this. You are not going to die." She refused to read it or even discuss its contents with him because she thought it would be bad luck. She said that there was a letter addressed to her. Jeffrey Rogers said that he wanted her to read it when he died. When they had finished talking, Jeffrey went into the library and put the will some place in the library. He had a safe downstairs but he did not put the document in the safe, at least at that time. 18In her first affidavit, Alex Byrne did not say what Jeffrey Rogers said to her about the contents of the will on the occasion he showed the document to her. She deposed that on her 18th birthday when Jeffrey flew to Queensland to spend a week with her and her mother and friends, he spoke to her and told her that he had made a new will and that everything was left to her. 19In a second affidavit, Alex Byrne deposed that Jeffrey Rogers told her on many occasions that she was to inherit his estate and that he had made sure that that was to happen. In her second affidavit she said that she saw Jeffrey Rogers' last will in 2008 and that he told her that she was to inherit his estate. This was the same occasion as she had referred to in her first affidavit when he showed a document which he described as his will to her. 20There is confusion as to whether this episode is said to have taken place in 2008 (as referred to in Alex Byrne's second affidavit) or shortly before Alex Byrne's 18th birthday in September 2009, (as deposed to in her first affidavit). The evidence was vague in many respects as to time. Until the last day of hearing, there was no evidence as to when Jeffrey Rogers was admitted to hospital for the operation about which Alex Byrne spoke. I was initially told that it was common ground that he was hospitalised for an operation on his lungs in September 2009 (T2). I was later provided with an agreed chronology that stated that Jeffrey Rogers had a cancer operation in August 2008. However, a discharge summary that was eventually tendered from the Royal Prince Alfred Hospital established that the operation took place on 7 September 2009. He must have been well enough to fly to Queensland for Alex Byrne's 18th birthday on 22 September 2009. 21In her oral evidence, Alex Byrne said that on the occasion she came down to Sydney to see Jeffrey Rogers before his operation he said to her that, "It was all in the will and that everything was left to me and I'd be taken care of." She reiterated that Jeffrey got something out of the library that he wanted her to look at. He opened it and put it in front of her at the table. She did not want to have anything to do with it. The possibility of his death was the last thing she wanted to think about. She acknowledged that it was possible that the document that was put in front of her was a copy of the 1994 will. 22I accept Alex Byrne's evidence that Jeffrey Rogers did tell her that he had made a will that left everything to her. If this were the only evidence, it would be probable that in the context of that discussion the document he tried to place in front of her was a will made in her favour, rather than the 1994 will. 23I accept Alex Byrne's evidence, notwithstanding the unsatisfactory way in which the evidence was adduced in her affidavits referred to above. I do so having regard to the substantial corroboration of that evidence referred to below. 24Alex Byrne's then partner, Mitchell Tompkins, travelled with Alex Byrne when they visited Jeffrey Rogers the night before he went into hospital. Mitchell Tompkins deposed that Jeffrey Rogers made reference to a will and that he (Mitchell) asked Jeffrey what would happen and whether Alex knew what to do. Mitchell Tompkins deposed that Jeffrey said that it was all in the will, and that Alex was to get everything. He said the same thing on many other occasions. However, in cross-examination Mr Tompkins was asked to recount what he recalled Jeffrey saying on the night before he went into hospital. Mr Tompkins said: "...he was explaining that because of his age and the operation was pretty serious, that he may well pass away and he was going through with Alex little things about, like, what she would do with the dogs and - and whatnot. And - and I asked him, 'Does Alex know fully what to do in the case of - of your death?', and he said to me that everything that Alex needs to know is in his will, was in the will. And that was where I left it and I gave them time after that to have a bit of time together ..." 25That was all that Mr Tompkins recalled having been said on that particular night. It did not support his affidavit evidence that Jeffrey Rogers had said that it was all in the will, and Alex was to get everything. However, he reaffirmed his evidence that on numerous occasions, especially on the first time he was in Jeffrey Rogers' house (which was in 2008), Jeffrey Rogers was adamant that Alex was to eventually own the house. 26Mr Tompkins' evidence does not support a finding that Jeffrey Rogers made a will leaving his estate to Alex Byrne. But it is not inconsistent with Alex Byrne's evidence of what Jeffrey Rogers said to her. 27Two of the people for whom Jeffrey Rogers cleaned were Tish Bruce and her partner Susan Kerr. Tish Bruce deposed that Jeffrey "expressed" that Alex Byrne was the beneficiary of his estate and never mentioned a second beneficiary of his will. "It was all to go to Alex." She had not met Alex Byrne, but he nonetheless spoke to her regularly about Alex. (This was not an uncommon theme in the evidence. Some witnesses gave evidence of having heard a lot about Jeffrey Rogers' friends, but having met them for the first time at the funeral.) In her oral evidence Ms Bruce said that Jeffrey Rogers told her and Susan Kerr that his affairs were organised. This was in the context of his needing to be sure that at the time of death, things were certain. Although Ms Bruce could not recall the exact words of the conversations, what was said by Mr Rogers gave her the understanding that his affairs had been organised for the time of his death. Her understanding of what he said about the intended beneficiaries of his estate was that Alex was to be the sole beneficiary. Ms Bruce's partner, Susan Kerr, deposed: "When Jeffrey was diagnosed with cancer I had a long chat with him about what was happening. I am a cancer survivor and I know what he would have been going through. I remember that I said to him when he was diagnosed 'Jeffrey, have you got your shit sorted? Have you got your estate in order?' Jeffrey replied 'absolutely.' I then said to him 'what are you doing?' Jeffrey said 'well a few things are moving around but that statue is going to Alex. The silver is going to Alex. The whole house is going to Alex.' Jeffrey never mentioned anyone else when it came to his testamentary intentions." 28Louise Webb was a friend for whom Jeffrey Rogers worked as a cleaner. She deposed that his testamentary intention had become the total focus of Jeffrey's life in the last four or five years, and in the last conversation she had with Jeffrey, he said, "I'm leaving the house to Alex". 29Marie Hallinan had been the partner of Beverley Byrne, but was Beverley Byrne's flatmate at the time of the hearing. In her affidavit she deposed that, "Jeffrey's whole thing was that everything was for Alex and no-one else". She gave no admissible evidence in her affidavit of Jeffrey Rogers' expressing any intention to leave his estate to Alex, or of his having said that he had done so, but her evidence supported the view that he intended to leave his estate to Alex Byrne. 30Eva Cosmos had known Jeffrey Rogers from about 2005. They were friends from about 2006. She saw him every day for coffee and they had dinner once a week. She gave evidence that: "He didn't actually say he had a will, but he told me his intentions were that if he were to pass on, he would be leaving everything to Alex." 31Svetlana Gilleman is the partner of Siri May. Ms Gilleman gave evidence that within the first few months of her meeting Jeffrey Rogers in 2005 he said to her that in his will he left everything to Alex, everything. 32Beverley Byrne deposed that she "knew" that Jeffrey Rogers had put her down as the executor of the will he made when Alex was about 16. This sentence in her affidavit has no weight. She did not attest to any facts by reason of which she allegedly knew this, except to say that "Jeffrey discussed these things with me and then he went ahead and did them". She did not say what Jeffrey Rogers said or how she knew that he went ahead and made the will. 33Beverley Bryne deposed that at Alex's 18th birthday party Jeffrey Rogers told her that now that Alex was 18 she was the executor. However, she also said that she "believed" Jeffrey Rogers made a later will just after Alex had turned 18 where Alex was the executor. She did not give evidence of the primary facts that provided the basis for that belief. 34In her affidavit made on 20 September 2011 Beverley Byrne also deposed that: "... a few years ago I was experiencing some emotional difficulties as I felt that I had given my child nothing and I remember that Jeffrey called me on the phone and I said to him 'Jeffrey, I am having a complete breakdown here.' Jeffrey then said to me 'Bev, don't worry. I'll take care of it. I've left everything to Alexandria. The whole estate, and I will help her go to school, to University.'" 35Beverley Byrne was an unimpressive witness. Her answers were often unresponsive to the questions asked. She displayed antipathy to Philip Byrne that coloured her evidence. I do not consider her evidence to carry any material weight. 36Other witnesses gave evidence of Jeffrey Rogers' having said words to the effect that, "Everything was going to Alex". It is unnecessary to deal with all of that evidence because Ms Cohen, who appeared for Philip Byrne, accepted that Jeffrey Rogers made statements to that effect from time to time to some of his friends and acquaintances. The evidence of four further witnesses on this topic, however, is important, namely, that of Dr Lis Young, her daughter Siri May, the deceased's brother, Mark Rogers, and a Lisa Mikulandra who had no acquaintance with or knowledge of Alex Byrne, or any prior acquaintance with Jeffrey Rogers. 37Dr Young gave evidence about Jeffrey Rogers' testamentary intentions in re-examination. She gave that evidence without objection, notwithstanding that the questions did not arise from cross-examination. Ms Cohen did not seek leave to further cross-examine. Dr Young said that Jeffrey Rogers was "pretty focused on his testamentary intentions and it was a constant topic of conversation". According to Dr Young, Jeffrey Rogers said to her that everything he owned, shares, house, everything, was to go to Alex. In final submissions, Ms Cohen (counsel for Philip Byrne) accepted that Dr Young was a witness of credit. I think that is a correct assessment. 38Her evidence was consistent with Mark Rogers' evidence. He said that on a date he could not recall, in about 2004 or 2005, Jeffrey Rogers told him in a telephone conversation that: "I have made a will. Alex gets the lot except some things I have given to some friends." 39Siri May deposed that she had a conversation with Jeffrey Rogers a week before he died where he said Alex was being left everything. In that conversation Jeffrey Rogers said to her that Alex was getting everything and said, "If she chooses to piss it all up the wall when I die, that is her choice". 40Lisa Mikulandra worked for a company that sells physiotherapy equipment. On 21 October 2010, Jeffrey Rogers approached her at a trade fair seeking some information about the equipment. She visited him in his house the following day, that is, 22 October 2010 to demonstrate the physiotherapy equipment that assisted his breathing. They spent an hour or so talking about various topics including his house, his dog, and various art deco pieces that Jeffrey had collected. She deposed: "Part of my policy when I discuss the needs of my clients is that I ask them what their plans are for the future. Jeffrey told me that he wanted to manage his breathing and energy so that he could walk every day and continue on and finish his house and keep going for the sake of his daughter and his dogs. Jeffrey then said to me 'if anything happens to me, my daughter gets the lot. I've left everything to her in my will.' I then said to Jeffrey 'wow, that's a lot for a 20 year old.' He then said to me that she is very sensible and that her mother will look out for her". It is clear that when Jeffrey Rogers spoke to Ms Mikulandra about "my daughter" he would have been referring to Alex Byrne whom he treated as a daughter.) 41Ms Mikulandra confirmed this in her oral evidence. She said that: "And we looked at all his art deco pieces because I was sort of into that. Spent quite a lot of time talking to him. And then he said, 'When I go, my daughter gets the lot, I've I have left everything to her in my will.' And I went, 'Oh, do you think that's a good idea she's only, what, twenty?' He said, 'No, no, she's very sensible girl, she's doing this.' He was very proud of her, talked very highly of her." 42Ms Mikulandra was also a credible witness. Moreover, she had no connection with Alex Byrne or any of Jeffrey Rogers' different circles of friends. 43A number of witnesses said that Jeffrey Rogers compartmentalised his life and his friends. Ms Cohen submitted that he may have said to some people that he was leaving his estate to Alex Byrne because Alex was known to that circle of friends, whereas Philip Byrne was not. But neither Ms Mikulandra nor Mark Rogers was associated with any of Jeffrey Rogers' friends. 44Lord Eldon cautioned that: "Few declarations deserve less credit than those of men as to what they have done by their Wills. The wish to silence importunity, to elude questions ... must be taken into consideration." (Pemberton v Pemberton (1807) 13 Ves Jun 290 at 301; 33 ER 303 at 307.) 45By all accounts Jeffrey Rogers was not someone who wanted to deflect inquiries about his testamentary intentions. He spoke about his testamentary intentions without reserve. He may have wished to tell one circle of friends what they wished to hear, or expected to hear, but that provides no explanation for his having told Mark Rogers and Ms Mikulandra that he had made a will in favour of Alex Byrne or, "his daughter". Contrary statements of testamentary intention 46The evidence about Jeffrey Rogers' testamentary intentions was not uniform. Craig Kentell is a builder who worked on Jeffrey Rogers' house at Tempe. He met Jeffrey Rogers three times: once in 2003; another time in 2005; and the third time in 2009. He deposed that in 2005, Jeffrey Rogers told him that he was ill and may not be able to complete the house, and that Philip Byrne would engage him to complete the job. Mr Kentell met Philip Byrne at that time. Mr Kentell said that in late 2009, Jeffrey Rogers again said to him words to the effect: "I am very ill and may die, I am leaving the house to Philip Byrne and he will engage you to carry out the work." 47Mr Kentell was cross-examined about his evidence of the conversation in 2005, but not about the conversation to which he deposed took place in 2009. He was not shaken in the evidence he gave. 48David Burdon is a panel beater and spray painter. He deposed that on several occasions, Jeffery Rogers and Philip Byrne visited him together. On other occasions he visited them when they were working on the house. Other visits occurred when Philip and Jeffrey dropped a car off for Mr Burdon to do work on the car. The visits took place between about 2000 or 2001 and 2007. Mr Burdon said that on probably two occasions, Jeffrey mentioned that he was going to leave the house to Phil. He could not say when those were. In his affidavit, he deposed that Jeffrey Rogers said that if anything happened to him, the house would be Philip's, because of the time and effort they had spent together to get the house project finished. Later in his evidence Mr Burdon said that Jeffrey Rogers only said on one occasion that if anything happened to him, Phil would get the house. That was in about 2006. 49Matthew Pettifer is an electrical contractor. He met Jeffrey Rogers once in October 2008 when he provided a quote for installation of ceiling fans. He deposed that he met Philip Byrne while he was at the Tempe house. He said that on that occasion, Jeffrey Rogers said, "the house will be left to Phil if anything happens to me in the near future" and to, "relay everything through Phil and he will cover the cost of the quote". Mr Pettifer was only asked to recall this conversation in about January 2013. I am not persuaded that Mr Pettifer's memory of the occasion is accurate. 50Manuel Koulizakis swore an affidavit that was read but he was not available for cross-examination. He deposed that when the Tempe house was at lockup stage, Jeffrey Rogers asked him to help move some items up to the second level. He occasionally went to the Tempe property to check on the progress of the construction and do odd jobs. He deposed that in January or February 2009 Jeffrey Rogers said to him words to the effect, "After Philip and I depart the planet, Philip's daughter will inherit this place from whichever one of us is last to depart and then it will be her problem. I hope though that Phil and I will have it well finished before then." As he was not available for cross-examination the weight to be given to this evidence is problematic. 51Michael Parker is a plant operator. He deposed that in about February 2000, he viewed the Tempe property which had recently been bought. He was present to give advice regarding earthworks. According to Mr Parker, Jeffrey Rogers showed him building plans and identified a room on the plans that he said would be a room for Alex to stay in when she visited during school holidays. Mr Parker deposed that Jeffrey Rogers said words to the effect, "The property would be 'willed' to Phil and in turn Phil would leave the property to Alex." Mr Parker had not seen Jeffrey Rogers from about 2002 or 2003. He said that he could remember the conversation that took place in February 2000 because he was "shocked at the generosity of the guy" and it was something that stuck in his mind. I do not accept that Mr Parker has any real recollection of a conversation that took place 13 years before he swore his affidavit or gave evidence about it. In cross-examination he said that it was in 2002 or 2003 that Jeffrey Rogers said words to the effect, "Once I pass on, this will be Philip's." He gave no evidence in his affidavit of such a conversation taking place in 2002 or 2003. 52Peter Vournovas swore an affidavit on 24 January 2013 in which he deposed that in early 2009 he was helping Jeffrey Rogers move a sheet of insulation material to be installed on the property. He deposed that afterwards when they were on the veranda having a drink, Jeffrey said, "After Philip and myself have left this earth, Philip's daughter will inherit the place and it will be her problem." 53This is strikingly similar to Manuel Koulizakis' evidence. Peter Vournovas said that someone called "Manuel" (who could be Manuel Koulizakis) was present on this occasion. Peter Vournovas also did not make himself available for cross-examination. I attach little weight to that affidavit accordingly. 54James Jopson deposed that he had been a friend of Philip Byrne and Jeffrey Rogers since the birth of Alex. He saw Jeffrey once or twice a month for coffee. He deposed that once Jeffrey bought the property in Quarry Street, Tempe, most of their conversations concerned the ongoing renovations. He said that the renovations were an ongoing joke between Jeffrey and him because it looked as if they would never be finished. Mr Jopson deposed that on one occasion he said to Jeffrey Rogers, "what happens if you die?", and Jeffrey responded, "Well, if I die it will be Phil's problem." He said, "What if Phil goes before you?", and Jeffrey said words to the effect, "Then his daughter will get the house." He said this conversation would have taken place some time around 2003, but there was a similar conversation sometime in 2008. 55In his oral evidence, Mr Jopson was asked to confirm the conversation about Jeffrey's testamentary intentions occurred prior to 2004. He said he was not too sure exactly when the conversations occurred. He said, "He used to come up all the time". That was not consistent with his affidavit. Then in an unresponsive answer he added: "A. Yeah, like he was getting this done and he was getting that done and it wasn't finished. It was never finished and that. Like I actually said to him, 'You will die before the place is finished' and he actually said, 'Well, that will be Phil's problem'. I have gone, 'Okay'. I said, 'What makes you think that Phil is going to out last you?', and he said, 'Well, if Phil dies, then it will go to Alex'. Q. The question A. 'If Alex dies, it goes to the' I think it is the AIDS - AIDS Society or the AIDS Council or something." 56That appeared to me to be a response that Mr Jopson had learned. In his affidavit he made no reference to Jeffrey Rogers' saying that the house would go to the AIDS Society or the AIDS Council if both Phil and Alex died. At the initial conclusion of his cross-examination I asked Mr Jopson whether anyone other than Jeffrey Rogers had discussed with him the contents of Mr Rogers' will. He said that Melissa Benn had explained to him that the will was being contested. I infer from his unresponsive answer to the question that she had disclosed the contents of the 1994 will to Mr Jopson. In my view, Mr Jopson's memory was reconstructed by what he had learned as to the contents of the 1994 will. 57Melissa Benn is a solicitor practising under the name Hurlstone Legal. As noted at para [12], Ms Benn was in a de facto relationship with Philip Byrne from about 2003 or 2004 to 2008. They have a daughter. Ms Benn acted as Philip Byrne's solicitor in the proceedings until some time in about June or July 2012. It is part of the court record that Ms Benn filed a caveat in respect of any grant being made on behalf of Philip Byrne on 31 December 2010. She acted as Philip Byrne's solicitor on the filing of the summons for probate in March 2011. The summons filed on 15 March 2011 sought a grant of probate in solemn form of an "informal will of Jeffrey Norman Rogers dated 19 December 1994". In support of that application Philip Byrnes swore an affidavit in which he deposed that a "document dated 19 December 1994 ... is, I believe, the last will of Jeffrey Norman Rogers ... and I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased." He deposed that: "My means of identifying the will are that I was shown the document by the deceased sometime shortly after it was executed. I recognise the signature to be that of the deceased and that the document is the same document that was shown to me on or about 1994 shortly after it was made." 58The document of which probate was initially sought was a page signed by Mr Rogers dated 19 December 1994 addressed "To whom it may concern". It stated: "I advise that I have today signed by Last Will and Testament leaving the whole of my estate to my friend Philip Calvert Byrne or if he should predecease me then to his daughter Alexandria Elizabeth Byrne and if she dies before me or before attaining her majority then the whole of the [sic] my estate is to go to the Aids Trust of Australia. I have made my Will after careful consideration and I express my wish that no person including my brothers, Mark and David, should challenge or attempt to set aside the provisions of my Will. In particular I have made no provision in my Will for my brothers, Mark and David, because of the way they have treated me during my life. Neither of them have provided me with any financial support nor have I sort [sic] such financial support from them. They have not accepted my sexuality and have treated me in a homophobic and insulting way." 59In support of the application Philip Byrne also deposed that he had a conversation with the deceased in December 1994 in which Jeffrey Rogers said to him, "Philip, I have made my will and left everything to you unless you go first and then Alex gets everything." He deposed that Jeffrey Rogers then showed him the document which is addressed "To whom it may concern". He deposed that Jeffrey Rogers said that he had spoken to a lawyer at Mallesons who gave him advice that his brothers would not be able to contest it. 60Melissa Benn deposed that about a week before Jeffrey Rogers died she visited him at his request. She deposed that for the first time he raised with her matters in regard to his death. She deposed to the following conversation having occurred: "As we were discussing Jeffrey Roger's [sic] affairs I said: 'I think you gave me a copy of your will, but I haven't checked to see if I still have it. It must be in the file or in my safe.' Jeffrey 'Oh yeah, I gave you a copy. I never ended up doing anything to change that. Perhaps I should leave everything to Alex in some kind of a trust like you suggested?' Me: 'If you want I can have a look at the law and let you know?' Jeffrey: 'I think I'm just going to leave it as it is. Alex is 18 now so I'm going to give her shares. I have already filled out all the forms to put them into her name.' Me: 'Does she know that's what you are doing?' Jeffrey: 'No, she doesn't'." 61This evidence was not challenged in Ms Benn's cross-examination. It was first raised by her in an affidavit sworn on 6 June 2012. In his affidavit of 15 March 2011 in support of the application for probate of the informal document headed "To Whom It May Concern", Philip Byrne gave evidence of having been told by Ms Benn the matters later set out in her affidavit of 6 June 2012. I do not reject her evidence as to what she was told by Jeffrey Rogers a week before he died on the ground that it was recent invention. 62Ms Cohen submitted that I should accept Ms Benn's evidence because she is an officer of the court. I do not think that that is a factor that entitles her evidence to greater weight than that of other witnesses, particularly as Ms Benn was not only the solicitor for the plaintiff, but also his former de facto partner and mother of his child. That relationship was not disclosed in her affidavits. Although there was no challenge to this part of Ms Benn's evidence, her evidence was in substance contradicted by the evidence of contrary statements made by the deceased. 63The evidence on both sides could only be reconciled if Jeffrey Rogers was telling one thing to Melissa Benn and Mr Kentell and another to Mark Rogers, Dr Young, Siri May and Ms Mikulandra, amongst others. There is no apparent reason why he should have made such conflicting statements as suggested in the evidence. 64Notwithstanding the conflicts, on the basis of the evidence of the statements made by Jeffrey Rogers as to what he had provided for in his will, I would conclude that he made a will after 1994 which made Alex Byrne the sole beneficiary of his estate, subject possibly to specific gifts of individual chattels to unidentified friends. Other evidence as to whether deceased made a will in favour of Alex Byrne 65But such a conclusion cannot be drawn only from the evidence as to the deceased's statements as to what he had provided for in his will. As Ms Cohen submitted, other problems remain. The first is that there is no evidence that anyone prepared a new will for him. If one of Jeffrey Rogers' apparently wide circle of acquaintances had witnessed a will for him, it is likely that he or she would have made that known. If he prepared a new will himself, that is, without a solicitor, the probabilities are that he would have asked someone he knew to witness the will. Such a person is likely to have come forward. 66It is possible that the will was drawn for Jeffrey Rogers by a solicitor who is unaware of his death. I infer that the solicitors whom Jeffrey Rogers is known to have used have been contacted. Jeffrey Rogers appears to have been so forthcoming about his personal affairs to a wide range of friends that it would be surprising he did not identify the solicitor he used to prepare a new will, if he used a solicitor. But if he did not use a solicitor, it is surprising that the witnesses to the will have not been located. These facts cast doubt on whether he did make a will in favour of Alex Byrne. 67Further, if Jeffrey Rogers made a will in favour of Alex Byrne, I would infer that he did so before her 18th birthday. I would find that it was that will he attempted to show her before his admission to hospital in 2009. It is not probable that he would have appointed Alex Byrne as the executor of his will when she was a minor. If he had appointed someone else, one would expect him to have asked that person whether he or she was willing to accept appointment as executor, or at least told that person of the appointment. The only evidence to that effect is that of Beverley Byrne whose evidence would have been largely inadmissible if objection had been properly taken, who expressed conclusions without primary facts to support them, and who was not a witness of credit. 68A further reason for doubt is the absence of the will. Mr Brown, who appeared for Alex Byrne, submitted that I should find that the absence of the will in her favour is explained by Philip Byrne's having removed it. Such a finding would be serious. Such a finding could be made on the balance of probabilities, but in deciding whether or not I was satisfied on the balance of probabilities that Philip Byrne removed a will in favour of his daughter, I must take into account the gravity of what is alleged (Evidence Act 1995, s 140(2)). The principles in Briginshaw v Briginshaw (1938) 60 CLR 336 apply. There, Dixon J said (at 361-362): "The truth is that, when the law requires the proof of any fact, that the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. ... But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 69Dixon J added (at 363): "When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected." (Citation of authority omitted.) 70Philip Byrne had the opportunity and the motive to remove a will in favour of Alex Byrne. At the time of the deceased's death he was living in the Tempe house. There was a safe in the house, but keys to the safe and a combination were readily accessible. However, motive and opportunity are not a sufficient basis for drawing an inference that Philip Byrne removed a will in favour of his daughter. He denied having opened the safe. He said that in 2006 he saw Jeffrey Rogers putting a copy of the 1994 will in the safe together with Philip Byrne's own will. He said that he did not access the safe himself. 71Jeffrey Rogers died on Christmas Day 2010. That was a Saturday. He was taken to hospital by ambulance on the Wednesday or Thursday before the Saturday. That was not a planned admission. He had rung the ambulance but was unable to get down the steps to open the door for the ambulance. He rang Philip Byrne to give the ambulance access. He was then taken to hospital. 72Alex Byrne and her mother Beverley resided in Queensland. They flew to Sydney on Christmas Day. Philip Byrne and Melissa Benn picked up Alex from the airport. Alex and her mother had planned to visit Jeffrey in hospital. Dr Young and Siri May picked up Beverley and they drove to Jeffrey's house. They observed that in the study, there was a shredder full to the brim with shredded material. 73A number of witnesses spoke of never having seen a shredder in the Tempe house or in Jeffrey Rogers' possession. On the other hand, Philip Byrne gave evidence of Jeffrey Rogers having owned a number of shredders. It is not unlikely that he would have had a shredder. He had a penchant for gadgets. He was also said to be a meticulous man and it would be consistent with his being meticulous that he would have had a shredder. 74I think it more likely that it was Jeffrey Rogers who was shredding documents in his study than that Philip Byrne was doing so. The fact that the shredder and the shredded material were found in the state they were is consistent with Jeffrey Rogers having been shredding material when he suffered the emergency that required him to call the ambulance on the Wednesday or Thursday before he died. He was then so incapacitated that he could not get to the door. If he were shredding documents when he suffered a collapse, that would explain the state in which they were found. 75On the other hand, if Philip Byrne were shredding documents for a nefarious purpose, it is highly unlikely that he would have left the evidence. He had time before collecting Alex from the airport to have removed the evidence if there was anything sinister in the shredding. 76No shredded will was found. The parties agreed that the shredded material (so far as it could be identified) was neutral to the issues in the case. 77An attack on Philip Byrne's credit was made by his ex partner Beverley Byrne. She gave evidence (which would have been inadmissible if objected to in accordance with the usual order for hearing) that Philip Byrne was arrested for cocaine dealing and that he was convicted of a gun charge and a money charge. Philip Byrne did not deny that he was prosecuted on some drug charges. But his evidence was that the charges were all dropped. He was convicted of possession of a rifle 25 years previously. He denied any conviction for a "money charge". No record of convictions was tendered. Philip Byrne's criminal record as proved in these proceedings is not a reason for disbelieving his denial of having removed papers from the safe. 78Counsel for Alex Byrne initially mounted a more serious attack on Philip Byrne's credit. He was shown a driver's licence that contained a photograph that bore a striking resemblance to him in the name of another person, with a different address and a Medicare card and an ANZ Bank debit card in that person's name. It was put to him, but he denied, that he had engaged in an identity fraud. I rejected the tender of the driver's licence, the Bankcard and the Medicare card when they were tendered in the plaintiff's cross-examination because of the then absence of any evidence as to their provenance. There was then no evidence that Mr Byrne was the person responsible for their creation. I rejected the tender of the documents "at least at this stage". 79Alex Byrne gave evidence of having been given the documents by her partner, Mitchell Tompkins, on 26 December 2010. Because Mitchell Tompkins was to give evidence I allowed Alex Byrne to give evidence as to how he said he had found the cards (Evidence Act, s 64(3)). According to Alex Byrne, Mitchell Tompkins had found the cards because they had fallen down underneath the wheel of a car that Jeffrey Rogers used to drive. 80The cards were not re-tendered. Mitchell Tompkins was not asked any questions in relation to this topic. I can only assume that no evidence that he could have given would have supported Alex Byrne's evidence that the cards were found at the house in which Philip Byrne lived. 81In the result there was no evidence to impeach Philip Byrne's credit or character on the basis of alleged identity fraud. 82An aspect of the case I found curious was that Philip Byrne's caveat against a grant of probate was filed only six days after Jeffrey Rogers' death. The safe was opened by a locksmith on 27 or 28 December. Philip Byrne was not present. Dr Young gave evidence that she rang a locksmith and asked him to come and open the safe because they could not find the key. She gave evidence, which I accept, that they found in the safe "an old outdated will" being a will by which Jeffrey Rogers left his assets to Philip Byrne. This must have been a copy of the 1994 will. She gave that document to Mark Rogers. 83The discovery of the copy of the 1994 will in the safe was not disclosed until Dr Young gave oral evidence. 84In his affidavit of 15 March 2011 Philip Byrne deposed that on about 29 December he had a conversation with Mark Rogers in which Mark Rogers denied that a will had been found. Philip Byrne was aware that the safe had been opened. One possible line of inquiry was whether the caveat was lodged on 31 December 2010 because Philip Byrne was aware that the safe had contained a copy of the 1994 will. If that was the reason for filing the caveat so quickly, the question would arise as to whether his knowledge of the contents of the safe was based only on his understanding of the events in 2006, or was due, contrary to his denial, to his having recently opened the safe. No questions were asked in cross-examination on this possible line of inquiry. At the conclusion of Philip Byrne's cross-examination, I asked him what prompted him to cause a caveat against a grant to be filed only six days after Jeffrey Rogers' death. He said that was done on legal advice from Melissa Benn. Mr Brown had no further questions in relation to that matter. Nor was Melissa Benn asked any questions on this topic. In the absence of cross-examination, I do not consider that I should reject Philip Byrne's evidence that he had not looked in the safe since 2006, by reason of his having filed the caveat only six days after the deceased's death. 85I am not satisfied on the balance of probabilities, having regard to the gravity of the matter alleged, that Philip Byrne removed a will in favour of Alex Byrne. There is no evidence that anyone else did so. 86The only other explanation as to why, if a will was made in favour of Alex Byrne, it was not found, is that Jeffrey Rogers destroyed it himself. There is no reason he should have done so. He told Melissa Benn that he was thinking of putting his shares in Alex Byrne's name. Dr Young gave evidence that in 2010 Jeffrey Rogers told her that he had spent a week with lawyers, and all his shares had been transferred into Alex's name, or put into a trust for her (T198-199). 87There was no evidence as to what shares Jeffrey Rogers owned. There was no evidence as to whether any shares had been transferred into Alex Byrne's name or to a trustee for her. There was no evidence of anyone having been appointed a trustee for Alex Byrne. Jeffrey Rogers did not tell Alex Byrne that he had done this. 88If Jeffrey Rogers transferred shares of value to Alex Byrne during his life, that could provide a reason for his destroying an earlier will in her favour, but only if he did not wish her to inherit the rest of his property after his death. The evidence that Jeffrey Rogers made a will in favour of Alex Byrne is all to the effect that he intended her to inherit all his estate, or all his estate, except for some personal chattels to be given to friends. The possibility that Jeffrey Rogers instructed his lawyers that his shares were to be transferred to Alex Byrne is not a reason for his having destroyed a will in her favour if he had made such a will. In any case, there is no corroboration that Jeffrey Rogers did so instruct any lawyers. 89The absence of a will in favour of Alex Byrne is not explained by its having been removed by Philip Byrne, nor by its having been destroyed by the deceased. 90The fact that a copy of the 1994 will was found in the safe after Jeffrey Rogers' death also points against a finding that he made a later will in favour of Alex Byrne. If he had done so there would be no reason for his having kept a copy of the 1994 will and every reason why he should have got rid of it. Conclusion 91Notwithstanding the evidence of many witnesses that Jeffrey Rogers said that he intended to leave his estate to Alex Byrne and the evidence of some witnesses that he said he had done so, I am not satisfied on the balance of probabilities that Jeffrey Rogers did make a will in favour of Alex Byrne. It may be that he said he had done what he intended to do. It may be that he said what he thought others would like to hear. It may be that he had mistaken the terms of the 1994 will and thought that under the terms of that will Alex would inherit if she attained her majority. Whatever the explanation for his statements I am not satisfied that he made a later will. 92The deceased made a will on 19 December 1994 in favour of the plaintiff. I am not satisfied on the balance of probabilities that that will was revoked by a later will in favour of Alex Byrne. 93For these reasons I make the following orders: 1. Order that probate of the will of Jeffrey Norman Rogers dated 19 December 1994 in solemn form be granted to the plaintiff. 2. Order that the proceeding be referred to the Registrar to complete the grant. 3. Order that the cross-claim of the first defendant and the cross-claim of the second defendant be dismissed. 4. Order that the documents of the deceased produced to the Court pursuant to orders made during the hearing be delivered to the plaintiff. 94The plaintiff is entitled to his costs out of the estate on the indemnity basis, but no other party is affected by that order as he is the sole beneficiary. My prima facie view is that the defendants should not be liable to pay the plaintiff's costs and that the costs of both defendants, including the costs of their cross-claims, should be paid out of the estate on the ordinary basis. This would be on the ground that the deceased was the cause of the litigation by the statements he made that he had left his estate to Alex Byrne. I will hear the parties on costs if any party seeks a different order. 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: 10 May 2013