Supreme Court New South Wales Medium Neutral Citation: Alan John Hyland as executor of the estate of the Late John Walter Popham Luscombe v Laura Healey [2013] NSWSC 1513 Hearing dates: 9-12, 16 September, 8 October 2013 Decision date: 15 October 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Purported later will not admitted to probate Catchwords: WILLS, PROBATE AND ADMINISTRATION - Testamentary instruments - Execution - Circumstantial suspicions raised as to testator's knowledge and approval - Onus of proof - Explanations insufficient to dispel suspicions Legislation Cited: Evidence Act 1995 (NSW) Succession Act 2006 (NSW) Wills, Probate and Administration Act 1898 (NSW) Cases Cited: Adler v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504 Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 Bailey v Bailey (1924) 34 CLR 558 Barry v Butlin (1838) 2 Moo PCC 480 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 In Re Levy [1953] VLR 652 In re Munn [1943] SASR 304 In the Estate of Lavinia Musgrove; Davis v Mayhew [1927] P 264 In the Will of Steward [1964] VR 179 Jones v Dunkel (1959) 101 CLR 298 Nock v Austin (1918) 25 CLR 519 Plunkett v Bull (1915) 19 CLR 544 Re Hodges: Shorter v Hodges (1988) 14 NSWLR 698 Romascu v Manolache [2011] NSWSC 1362 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Tyrell v Painton [1894] P 151 Wintle v Nye [1959] 1 All ER 552 Worth v Clasohm (1952) 86 CLR 439 Category: Principal judgment Parties: Alan John Hyland as executor of the estate of the Late John Walter Popham Luscombe (Plaintiff) Laura Healey (Defendant) Representation: Counsel: M.S. Willmott SC and G.M. McGrath (Plaintiff) S.L. Bell (Defendant) Solicitors: Lobban McNally (Plaintiff) File Number(s): 2010/392763 Publication restriction: No Judgment Summary 1Herbert Walter Luscombe ("Mr Luscombe") was a retired bank manager. On 27 July 2006, at the age of 98, he made a will (the "July Will"). He left everything to his nephew, John Walter Popham Luscombe (to whom I shall refer without disrespect as "John") and appointed John as his executor. 2Mr Luscombe died in January 2009. Probate in common form of the July Will was granted to John one month later. The sworn value of the estate was $3,384,598.61. 3In July 2009 John's solicitor received a letter sent on behalf of the defendant/cross-claimant ("Ms Healey"). That letter alleged that Mr Luscombe had made a will on 28 October 2006 (to which I shall refer neutrally as the "October Document"). This appointed Ms Healey as executrix and left all of Mr Luscombe's estate to her, with the exception of a $200,000 legacy to John. 4Ms Healey claimed that she had befriended Mr Luscombe in about 1992 when he was 84 and she was 58. Her evidence was that for the next seventeen years she was a regular visitor to Mr Luscombe's home (less regular between 2006 and 2009) and that their friendship extended to sexual intercourse. 5But John had never heard of Ms Healey. 6John commenced these proceedings in November 2010 but died three months later. The proceedings have been carried on by John's executor, Alan Hyland, who was John's partner for 30 years. 7Ms Healey says that the October Document is the last will and testament of Mr Luscombe. She asks the Court to revoke the probate of the July Will and to make a grant of probate in solemn form of the October Document in her favour. Mr Hyland points to a number of matters which he submits raise suspicions about the October Document. He submits that the Court cannot be satisfied that the October Document is what it appears to be, namely the last will and testament of Mr Luscombe, the contents of which were known and approved by him. 8Ms Healey has been unable to dispel those suspicions. The Court is not satisfied on the balance of probabilities that the October Document is the last will and testament of Mr Luscombe. The question of revocation of the existing probate of the July Will therefore does not arise. The course of the proceedings and the form of these reasons 9The formal constitution of these proceedings was unusual. When, after some months of solicitors' correspondence, Ms Healey did not commence proceedings for a grant of probate of the October Document, John brought matters to a head by filing a summons seeking a declaration that the October Document was not a valid will of Mr Luscombe and had no testamentary force and effect. It was only then that Ms Healey filed a cross-summons, subsequently supplanted by a cross-claim, seeking orders revoking the grant of probate in common form in respect of the July Will and applying for a grant in solemn form of the October Document in her favour. 10As a practical and legal reality, it was Ms Healey who bore the burden of proving that the October Document was Mr Luscombe's last will and testament. The applicable legal principles are set out in paragraphs [15] to [32] below. 11The October Document looks like a will signed by Mr Luscombe. The formal requirements for its due execution appear on its face to have been satisfied. There was no suggestion that Mr Luscombe lacked testamentary capacity. Ms Healey called one of the attesting witnesses to prove both Mr Luscombe's execution of the October Document and what occurred when it was executed. In those circumstances, Ms Healey relied on the legal presumption that Mr Luscombe knew and approved the contents of the October Document as his will. 12The real dispute in these proceedings arose at this point of the legal analysis. Mr Hyland pointed to a number of what were said to be suspicious circumstances in relation to the terms and preparation of the October Document. It was correctly submitted that those suspicions shifted the burden onto Ms Healey to remove them and to prove affirmatively that Mr Luscombe knew and approved the contents of the October Document as his will. 13During the course of the proceedings I indicated to Mr S L Bell of Counsel, who appeared for Ms Healey, that I had reached a preliminary view that suspicious circumstances existed (see paragraph [78(15)] of Schedule 1 below). I informed him of those that I had identified. Subsequently, in the course of final submissions, Mr M S Willmott of Senior Counsel, who appeared with Mr G M McGrath of Counsel for Mr Hyland, relied on those and further matters as constituting the suspicious circumstances which Ms Healey had to dispel. 14After setting out the applicable legal principles, these reasons will focus on the suspicious circumstances which have been identified in Mr Hyland's case and the degree to which each of those has been able to be dispelled by Ms Healey. Schedule 1 to these reasons sets out my discussion of the evidence of the numerous witnesses that were called, including any necessary findings of credit, to the extent not dealt with in the main body of these reasons. Because the appearance of the October Document is itself an important matter, it is reproduced in Schedule 2 to these reasons. Schedule 3 is a facsimile of what I find at paragraph 92 below was Mr Luscombe's usual signature. Applicable legal principles - general 15The legal principles are well settled, and, with one exception, were not in dispute. The one exception was the nature of the standard of proof to which the Court has to be satisfied that the October Document was the last will of Mr Luscombe. I deal with this in paragraphs [27] to [32] below. 16Where it is alleged that a will being propounded has been revoked by a later will, the onus of proving revocation of the earlier will is on those who set up the later will. They have to prove the validity of the later will: In the Will of Steward [1964] VR 179 at 183. 17If the onus of proving that an instrument is the will of the testator is not discharged by the party propounding it, the Court is bound to pronounce against the instrument (Bailey v Bailey (1924) 34 CLR 558 at 570-2 per Isaacs J; Worth v Clasohm (1952) 86 CLR 439). 18This onus means the burden of establishing the issue. It continues during the whole case and must be determined on the whole evidence (Bailey v Bailey; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704-707.) 19The proponent's duty is, in the first place, discharged by establishing a prima facie case (Bailey v Bailey; Re Hodges). A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Bailey v Bailey; Re Hodges). 20The October Document was allegedly executed prior to 1 March 2008. By reason of Clause 3(6) of Schedule 1 of the Succession Act 2006 (NSW), the applicable statutory provision governing its form and execution as a will is s 7 of the Wills, Probate and Administration Act 1898 (NSW): 7 Form and manner of execution of wills (1) A will is not valid unless: (a) it is in writing, and (b) it is signed by the testator, and (c) it appears, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will, and (d) the signature is made by the testator in the presence of 2 or more witnesses present at the same time or the signature is acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (e) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other or of any other witness). (2) Without limiting paragraphs (d) and (e) of subsection (1), those paragraphs shall be taken to have been complied with if the following things happen in the following order: (a) the signature of the testator is made or acknowledged by the testator in the presence of a witness (in this subsection called the first witness), and (b) the first witness attests and signs the will in the presence of the testator, and (c) the signature of the testator is acknowledged by the testator in the presence of one or more other witnesses and also of the first witness present at the same time, and (d) the other witness, or at least one of the other witnesses, attests and signs the will in the presence of the testator (but not necessarily in the presence of the first witness or of any other witness). (3) No form of attestation by a witness is necessary. (4) In this section, a reference to the signing of a will by a testator includes a reference to the signing of the will by some other person who signs the will in the presence and by the direction of the testator. 21The party propounding a will is bound to call one of the attesting witnesses, if available, to prove due execution: In re Munn [1943] SASR 304. Both attesting witnesses do not have to be called, provided the one who is called gives evidence of due execution: Re Levy [1953] VLR 652 at 660. 22The party propounding a will must satisfy the Court that the testator knew and approved the contents of the purported will. I respectfully adopt the summary in Nock v Austin (1918) 25 CLR 519 at 528 per Isaacs J (citations omitted): (1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it. 23The correct question for the judge in such a situation is does the propounding party "affirmatively establish to my satisfaction that the testator knew what he was doing when he executed this will?". This requires "vigilance and jealousy" on the part of the Court in weighing the evidence: Nock v Austin at 524-525 per Barton and Gavan-Duffy JJ. 24Circumstances exciting suspicion are not confined to where a major beneficiary wrote or gave instructions for the preparation of the will. Wherever there are circumstances which excite the suspicions of the Court it is for those who propound the will to remove those suspicions and to prove affirmatively that the testator knew and approved the contents of the purported will. Only then will the onus shift onto the opponent of the will to establish fraud, undue influence or anything else to disprove the will: Tyrell v Painton [1894] P 151 at 157. 25The relevant circumstances are those which relate to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and execution, including whether there has been a significant change in testamentary bounty: In the Estate of Lavinia Musgrove; Davis v Mayhew [1927] P 264 at 280 per Lord Hanworth MR; Romascu v Manolache [2011] NSWSC 1362 at [205]. 26The burden imposed to displace suspicions will vary with the circumstances of the case. It may be light and easily satisfied or it may be "so grave that it can hardly be removed": Wintle v Nye [1959] 1 All ER 552 at 557. Nevertheless, the burden of displacing suspicions remains on the balance of probabilities and not beyond reasonable doubt: Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097. Applicable legal principles - standard of proof 27Conformably with the preceding paragraph, there was no dispute between the parties that the onus of proof on Ms Healey to dispel the suspicions that have been raised and to prove the October Document as the last will and testament of Mr Luscombe was on the balance of probabilities. However, Mr Hyland submitted that in applying the civil standard, the Court should do so to the "Briginshaw standard", referring to the well known judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Ms Healey took the contrary position. 28Since the introduction of the Evidence Act 1995 (NSW), references to Briginshaw are apt to mislead. The matter is now governed by s 140 of that Act: (1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceedings; and (c) the gravity of the matters alleged. 29In these reasons, when I refer to satisfaction on the balance of probabilities, I am applying the standard set out in s 140(1), informed by the considerations in sub-section (2). While there is inevitably some overlap between some or all of those considerations, each is applicable to the present case. 30As to s 140(2)(a), the nature of the cause of action is the proof in solemn form of a will. Nock v Austin speaks in terms of the Court's "conscience" being "judicially satisfied". In short, proof of a will in solemn form is a serious matter. 31As to s 140(2)(b), the nature of the subject matter of the proceedings is a substantial estate. More particularly, the subject matter concerns circumstances where there is a radical, almost complete, departure from the disposition of that estate between the July Will and the October Document. That raises a very significant question which puts the matter at the more "grave" end of the spectrum, to adopt the adjective used in Wintel v Nye (see paragraph [26] above). It is to be contrasted with a situation where there may have been only a minor benefaction in favour of Ms Healey leaving the bulk of the estate as provided for in the July Will: see Barry v Butlin (1838) 2 Moo PCC 480 at 485. 32As to s 140(2)(c) the gravity of the matters alleged is reflected in the seriousness and number of the suspicions alleged, taken both individually and collectively. Once those suspicions have been raised, the language used in decisions of the highest authority such as Nock v Austin of "removing the suspicion by proving affirmatively by clear and satisfactory proof", "careful and accurate consideration" and "vigilance and jealousy" support the approach that where, as in this case, real and substantial suspicions are raised, the onus of proof on the balance of probabilities is nevertheless an onerous one. In adopting this approach I am also mindful that the conclusions I have reached involve not accepting as adequate proof the evidence of an apparently disinterested and uncontradicted witness, Mr Bardossas. The July Will 33In order to understand why the circumstances relied upon by Mr Hyland give rise to suspicions about the October Document, it is necessary to set out the proven history of the July Will and Ms Healey's evidence in support of the October Document. 34I find the facts concerning the July Will to be as follows. They were not disputed. 35In late June or early July 2006 Mr Luscombe had a fall at his Homebush home, fracturing his pelvis and his ribs. He was admitted to Concord Hospital. 36During the course of Mr Luscombe's hospitalisation, he was regularly visited by John. John suggested to Mr Luscombe that he should give John a power of attorney to attend to Mr Luscombe's financial affairs. John said that he could arrange for his (John's) solicitor to visit Mr Luscombe in hospital. Mr Luscombe told John that he had his own solicitor from the firm of Piggott Stinson Ratner Thom ("Piggott Stinson"). Mr Luscombe asked John to contact that firm. 37On 19 July 2006 John telephoned Piggott Stinson and spoke to Ms Jeanette Tancred, an employed solicitor. John told Ms Tancred that he had spoken to Mr Luscombe about obtaining a power of attorney in his favour in order to attend to Mr Luscombe's financial affairs. 38On 24 July 2006 Ms Tancred attended on Mr Luscombe at Concord Hospital. She spoke with Mr Luscombe and was satisfied that he clearly understood what she was saying to him and that he had capacity to give instructions in relation to the power of attorney. She gave him the necessary explanations and witnessed his execution of the enduring general power of attorney in favour of John. Mr Luscombe signed the document with his usual signature (see the example at Schedule 3). 39During the course of that attendance Mr Luscombe raised the question of his will with Ms Tancred. He gave her instructions that he wanted to leave everything to John and that John should also be the executor of the estate. 40Ms Tancred prepared the July Will in accordance with Mr Luscombe's instructions. On 27 July 2006 Ms Tancred again attended on Mr Luscombe at Concord Hospital, this time accompanied by a paralegal, Ms Bhavini Sundarjee. There was discussion about what was to occur if John predeceased Mr Luscombe. After some thought Mr Luscombe nominated his cousins Wilfred and Louise Luscombe. He also gave instructions for his body to be cremated. 41Ms Tancred made handwritten amendments to the document she had prepared to include the names of the residuary beneficiaries and the instruction as to cremation. She then explained the terms of the July Will to Mr Luscombe and was satisfied that he understood it. Mr Luscombe executed it with his usual signature in the presence of Ms Tancred and Ms Sundarjee. Ms Healey's case - her relationship with Mr Luscombe 42I required Ms Healey's evidence in chief to be given by her in the witness box. 43Ms Healey never attended school and is unable to read or write. Ms Healey said that she first met Mr Luscombe in about 1992, when she was visiting her late father in a nursing home in Homebush, close to Mr Luscombe's home. 44Ms Healey's evidence was that one day she met Mr Luscombe at a shop which was opposite the nursing home. Mr Luscombe stopped to talk to her. He asked her where she was from and what she was doing there. Ms Healey says she told Mr Luscombe something about her life. At the end of that first conversation they agreed to meet at the shop again the next day. 45The second time they met they again spoke about Ms Healey's father and various problems that were going on in her life, in particular in relation to one of her adult children, Lenny. Mr Luscombe never spoke of his own life or his own family. At the end of the second meeting Ms Healey says that Mr Luscombe gave her his address and asked her to visit him whenever she could. He did not give her a telephone number and they never spoke on the telephone. 46Their third meeting is said to have taken place at Mr Luscombe's home. They sat on his verandah, drank cups of tea and talked about her son and the problems in her life. Ms Healey described Mr Luscombe as "very private" and a man who never spoke about his own life or his own family. She says that after the third visit she began to visit Mr Luscombe's home regularly. In about 1995 they started a sexual relationship. They would only ever meet at his home and they never left the house. They never spoke on the telephone to each other. No one ever saw them together. She would arrive unannounced and drive back home if Mr Luscombe was not there. 47Ms Healey's evidence was that in or about October 2006 she visited Mr Luscombe. He gave her two bundles of documents and they had a conversation to the following effect: Mr Luscombe: "If anything happens to me or if I pass away take these documents to a lawyer." Ms Healey: "What is in there?" Mr Luscombe: "You won't understand." 48Ms Healey says she never asked further details from Mr Luscombe about the documents. She took them home and never opened the bundles or read them, as she is unable to read or write. She did not have any idea what the documents contained or concerned. 49Between 2006 and 2009 Ms Healey deposed that she only visited Mr Luscombe a few times due to commitments she caring for Lenny, who was very sick. In 2009 she visited Mr Luscombe's home to find what she recognised as a "For Sale" sign in the front yard. She did not know where Mr Luscombe was. 50Ms Healey became concerned to ascertain Mr Luscombe's whereabouts. She remembered the two bundles of documents which he had given to her. She took the bundles to Ms Vivian Joseph, a solicitor. Her primary purpose at that time was to try to find Mr Luscombe. Ms Healey's evidence is that at no time during her relationship with Mr Luscombe did he ever mention he had a nephew or that his estate was to go to his nephew if anything happened to him. Furthermore, at no time did Mr Luscombe ever mention his will to her or that he had changed his will to include her in it. She knew nothing about the October Document until it was found among the documents which she had taken to Ms Joseph who explained to her, for the first time, what it was. Ms Healey's case - the execution of the October Document 51The October Document is dated 28 October 2006 (see Schedule 2). Mr Luscombe's execution of the October Document was apparently attested by Mr Anthony Michael B. D'Souza and Mr John Bardossas. Mr D'Souza was not called to give evidence. I deal with the circumstances relating to the failure to call him in paragraphs [77] and following of Schedule 1 below. 52Mr Bardossas did give evidence. I required his evidence in chief to be given by him in the witness box. However, it is convenient to reproduce (including its spelling and grammar) his account of events from an informal affidavit sworn by him on 10 April 2010, some seven months before these proceedings were commenced: 1. In or about October 2006 I was travelling with Anthony D'Souza my friend to Car Auction in Leichardt. 2. I remember Anthony received a phone call on his mobile from his friend late Don Harley Solicitor. 3. I remember that conversation last few moments and Anthony said to me We got to go to Horse and Carriage Hotel Homebush I said Why He said Don called me 4. Anthony then drove to the Hotel in Homebush. 5. I remember Anthony went in side the Hotel and I stayed in the car. 6. Few minutes later Anthony called me in the Hotel. 7. I then saw Don and an old age man sitting in lobby. 8. Solicitor Don introduced us with this old gentle man whose name was Herbert Luscombe and had conversation to the following effect:. Mr Lucombe said: I cancelled my previous will in which my nephew is the beneficiary because he is living with a young male age 30 year in homosexual relation and he does not want to leave all his hard earned money for the third party. He further said :I am going to give everything to my girlfriend whom I have relationship for last 15 years plus. 9. Don then pulled a Will from his briefcase and read it to all of us. 10. Mr Luscombe signed the Will first followed by Anthony. Anthony and I then left the hotel. 53Mr Bardossas' evidence refers to a solicitor, Mr Donald Harley. There was a solicitor of that name. The 2006 NSW Law Almanac records Mr Harley as having been admitted in 1970 and practising in Dulwich Hill. He died on 21 August 2007. Whether or not he in fact played any part in the preparation or execution of the October Document is one of the matters raised by Mr Hyland as casting serious doubt on Ms Healey's case. 54Mr Bardossas also gave evidence that at the time the October Document was executed, there was a woman standing next to Mr Luscombe. Having seen her in connection with these proceedings Mr Bardossas could say the woman was not Ms Healey. Her identity otherwise remains a mystery. The alleged suspicious circumstances 55The first matter which Mr Hyland submitted should arouse the Court's suspicions is the almost complete change in Mr Luscombe's testamentary bounty only three months after the July Will. 56Second, the Court's attention was drawn to these features of the terms of the October Document itself: (1)the odd handwritten dating of the October Document; (2)the misspelling of Mr Luscombe's middle name; (3)the use of the full name of Ms Healey's sister-in-law as the substitutionary beneficiary; (4)the reference to John; (5)the way in which Mr Luscombe wrote his name; and (6)the absence of a provision for cremation. 57Third, Mr Hyland submitted that the following matters in relation to the preparation and execution of the October Document should also raise the Court's suspicions: (1)the use of a solicitor different to the one who had prepared the July Will and who had no apparent prior connection with Mr Luscombe or anyone else other than one of the attesting witnesses; (2)whether Mr Harley in fact prepared the October Document; (3)whether Mr Harley was in fact in attendance when the October Document was executed; (4)the location and timing of the alleged execution of the October Document; and (5)why a private man would announce to strangers the reason for changing his will. 58Each of these matters (with the exception of the issue of location and timing), individually and especially collectively, do raise a real and substantial suspicion in my mind as to whether Mr Luscombe knew and approved the content of the October Document as his will. I shall consider each in turn. The change in testamentary bounty 59Ms Healey's explanation for the change in Mr Luscombe's testamentary bounty between the July Will and the October Document was conceived with ingenuity, put with skill but fails to assuage the Court's concerns. 60It was submitted for Ms Healey that the October Document should not be viewed as a disinheriting of John or expressing any disapproval that he was in a long term homosexual relationship. It was accepted that Mr Luscombe thought highly of John. Rather, there were three reasons which explain the October Document. First, John was already a wealthy man. Second, he already owned at least one third, if not two thirds, of the house at Homebush in which Mr Luscombe lived. Third, John was frail and unwell. Mr Luscombe would have been thinking that if his estate did go to John, it would not be very long before John would die and, in effect, the estate would pass to Mr Hyland. 61It was further submitted that the July Will was made after Mr Luscombe had been in hospital for only a few days. He may not have considered all his testamentary options at the time and would not have been wanting to do anything to upset John. It was submitted that the creation of the July Will happened "in an awful rush". 62By the time he came to make the October Document, Mr Luscombe had spent several weeks in Concord Hospital and then further time at the Ainsley Nursing Home. He had had time to think about both his own mortality and John's mortality. There had also been time to think about his relationship with Ms Healey and about her disabled son, Lenny. It was the son's need rather than Ms Healey's that caused him to change his mind. 63Mr Hyland made these arguments in support of the proposition that Ms Healey's explanations do not dispel the suspicions raised: (1)It is clear from Ms Tancred's evidence (about which she was not challenged in cross-examination) that Mr Luscombe was quite certain about what he wanted in the July Will. Ms Healey has failed to meet the challenge of providing any evidence that would support an explanation as to what occurred between July and October 2006 that would have caused such a radical revision in Mr Luscombe's intentions. (2)There is no suggestion that Mr Luscombe disapproved of John's homosexuality. Independent witnesses report that he never spoke adversely of John and, on the contrary, from time to time spoke highly of him. Until his death Mr Luscombe always gave John as his contact with the home nursing service which provided services to Mr Luscombe. Furthermore, when Mr Luscombe was discovered in distress outside his home three days before he died, it was John for whom Mr Luscombe called in his extremity. (3)Insofar as his estate ultimately falling into the hands of Mr Hyland is concerned, while Mr Hyland accepted that he and Mr Luscombe were not friends, they were "just different types of people". There is no suggestion of rancour between them. Mr Hyland visited Mr Luscombe once at the Ainsley Nursing Home (where Mr Luscombe went after his stay at Concord Hospital) and he accompanied John on visits to Mr Luscombe at Christmas and on birthdays. (4)Ms Healey's evidence of her alleged relationship with Mr Luscombe should not be accepted. (5)Mr Bardossas' evidence of Mr Luscombe's alleged explanation for the change in his intentions should not be accepted. (6)There was no independent evidence that Mr Luscombe had concerns about John's health. The issue should not be viewed with hindsight. In 2006 John had nearly 5 years to live and could and did regularly visit Mr Luscombe, do his shopping and the like. 64I accept Mr Hyland's submissions that Ms Healey has failed to displace the suspicions raised by the apparent change in Mr Luscombe's testamentary intentions. 65To appreciate why Ms Healey has failed to dispel the suspicions raised, it is necessary to draw attention to the distinction between primary proof of facts, proof of facts by inference and speculation. Ms Healey must establish an explanation to dispel the Court's suspicions by either primary facts (e.g. direct evidence of reasons for the change) or by inference from primary facts. However, an explanation which is nothing more than speculation and which, in effect, operates by filling gaps between the proven or inferred facts, but is not the product of either, will be insufficient. The difficulty for Ms Healey is that as I am unable to accept Ms Healey's evidence about the nature and extent of her relationship with Mr Luscombe and am left unsatisfied as to the reliability of Mr Bardossas' account, what is left of Ms Healey's explanation is really speculation. I adopt that term without criticism of anyone. 66My reasons for not accepting Ms Healey's explanation for the change in testamentary bounty are: (1)The matters which Ms Healey submits would have led Mr Luscombe to change his mind (see especially paragraph [60] above) were all equally known to him in July, including, to the extent it was the case, John's frailty. Ms Healey really needed to establish something which occurred between July and October to explain the radical change in testamentary intention. (2)I do not accept that the July Will was created in the rushed or unconsidered circumstances postulated by Ms Healey. (3)I am not satisfied that Ms Healey's relationship with Mr Luscombe was such as to justify the change. However, even if the relationship was as Ms Healey said in her evidence, it again fails to explain the change in circumstances where Mr Luscombe presumably knew and felt in July how it was said for Ms Healey he must have felt in October. (4)The acceptance by Ms Healey in final address that the October Document was not motivated by a desire to disinherit John because of his homosexuality meant the explanation ultimately preferred had a strained and contrived quality which seriously impeded its capacity to persuade. (5)There was no sufficient explanation for the change in substitutionary beneficiary from Mr Luscombe's cousins to Ms Healey's sister in law. 67I shall expand upon each of these reasons in turn. 68The three primary matters alluded to by Ms Healey (see paragraph [60] above) must have been equally applicable and known to John in July. A major evidentiary building block in Ms Healey's submissions was a clinical note made at the Ainsley Nursing Home on 22 September 2006: "Nephew visits regularly who himself is frail and hard of hearing, needing a lot of emotional support and extra time from nursing staff when he visits." This is a very thin reed. In the context of the other notes to which I was taken, and contrary to Ms Healey's submission, I have no doubt that the reference to "needing a lot of emotional support and extra time from nursing staff" relates to Mr Luscombe. Even accepting its description of John to be accurate, it is insufficient to justify a finding that Mr Luscombe was concerned about John's health. In addition, other notes make it very clear how close to and dependent upon John Mr Luscombe was. For example, a note on 19 September 2006 records "Herbert had a family member visit today and he became very upset when they had to leave. He needed 10-15 minutes support from RN. He feels his life will be over unless he goes home." On my reading, the tenor of the notes runs against providing a reason for the apparent change in testamentary intention. 69In paragraphs [33] to [34] above I have set out the facts as I have found them in relation to the execution of the July Will. There is nothing to suggest it was made in "an awful rush" or was insufficiently considered. I am satisfied that Mr Luscombe was firm and clear about what he wanted at the time. Albeit still on the balance of probabilities, this circumstance puts a real obligation on Ms Healey to provide convincing proof of an explanation for Mr Luscombe's apparent change of mind. 70I have set out in paragraphs [58] to [76] of Schedule 1 below why I have sufficient doubt about the evidence of both Ms Healey and Mr Bardossos so as not to be satisfied on the balance of probabilities that their evidence provides a suitable explanation. Furthermore, I accept the evidence of other witnesses called by Mr Hyland that Mr Luscombe spoke highly of John. The fact that he continued to list John as his next of kin with the home nursing service until his death and called for John in his final days are powerful, objective facts which contradict a finding that Mr Luscombe had changed his intentions for the reasons given on behalf of Ms Healey. 71However, even if I were to accept Ms Healey's account of her relationship with Mr Luscombe, it would not change my conclusion. This is because if it were so, Mr Luscombe would have had the same reason in July to benefit Ms Healey as he did in October. If it was that important to him, there is no reason to explain why he would not have made provision for her (and her son) in July. 72Until her final submissions, an element of Ms Healey's case in relation to an explanation for Mr Luscombe's change of mind did seem to be disapproval of his homosexual relationship with John. Assuming I was able to accept Mr Bardossas' account, it was ultimately submitted that his evidence of what Mr Luscombe said referring to a homosexual relationship was neutral rather than critical. Having heard Mr Bardossas give his account in the witness box of what Mr Luscombe said, it left no doubt in my mind that, at least in Mr Bardossas' account, the tone of Mr Luscombe's alleged statement was critical. 73The large body of evidence from independent witnesses as well as contemporaneous written material which all supported the conclusion that Mr Luscombe was proud of and dependent upon John meant Ms Healey had to present an alternative theory to explain the change in Mr Luscombe's intentions. However, any alternative theory had to surmount the very evidence which had necessitated the new theory being propounded. The answer offered by Ms Healey, which started with the propositions that neither disinheritance nor disapproval were the motive, was in reality nothing more or less than that over three months Mr Luscombe had time to think about things further and change his mind. In the absence of primary evidence of something which actually happened in those three months, that explanation amounts to speculation which does not dissuade the Court from its concerns. 74Finally, for the sake of completeness I should also record my abiding concern about the change in substitionary beneficiary from Mr Luscombe's cousins to Ms Healey's sister in law. 75Ms Tancred's evidence, which I have accepted, is that after some consideration Mr Luscombe nominated his cousins as the substitutionary beneficiaries of his estate. The family connection between them is sufficient to explain that decision. However, Ms Healey's own evidence is that Mr Luscombe never met her sister in law, to whom she referred in conversation with Mr Luscombe as "Jacquie". 76Ms Healey submitted that it was a sufficient explanation that she had told Mr Luscombe that her sister in law helped her from time to time with Lenny. Given the view I have taken of Ms Healey's evidence about her relationship with Mr Luscombe, my concern over the change in substitutionary beneficiary from family members - albeit people who he had to identify after some prompting from Ms Tancred - in favour of someone he had never met on the strength of a statement that she was helpful to Ms Healey is insufficient to assuage my concerns. While not a large matter in and of itself, it remains yet another unsatisfactorily answered part of the puzzle. The dating of the October Document 77It is clear on the face of the October Document itself, and I find, that the words "28th October" are not in the hand of Mr Luscombe nor in the hand of any of Messrs Harley, D'Souza or Bardossas. The handwriting expert, Ms Novotny, expressed the view (which I accept) that Mr Luscombe did not write those words. Ms Novotny also concluded that there was no evidence to support the conclusion that they were written by Mr Harley. From the examination of other documents in evidence bearing Mr Harley's signature and handwriting and based on the evidence of witnesses who knew his handwriting (all of whom say "28th October" is not in his handwriting), I am fortified in my conclusion that he did not write those words. 78The fact that the October Document is dated in an unidentified hand which does not belong to anyone apparently present at the time of its execution is a circumstance which raises the Court's suspicions and requires explanation. In some matters of legal practice the Court is entitled to draw on its own experience: Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 at [131] per Tobias JA; Beazley and Giles JJA agreeing. My expectation and experience is that where the date of a will is left to be written in by hand, it is generally either the testator who writes it in or, if there was a solicitor present, the solicitor. But even if that is not a view upon which I am entitled to act, it nevertheless remains that neither of those likely candidates, if they were in fact present when the October Document was executed, did in fact date it. 79Ms Healey has been unable to offer any explanation for this. There is no reason why a further, unidentified person would do so other than speculating it was written by the unidentified woman referred to by Mr Bardossas. The suspicion raised by this circumstance remains undispelled. The misspelling of Mr Luscombe's name 80All of the evidence to which I have referred in Schedule 1 from those who knew him supports the fact, which I find, that Mr Luscombe was a careful man who in 2006 was able to take care of his own affairs. There is also no doubt, and I likewise find, that Mr Harley was a careful and punctilious solicitor. He would send documents back to his secretary to correct even the most minor errors. 81Ms Healey seeks to explain the error in Mr Luscombe's name by relying on Mr Bardossas' evidence that Mr Luscombe did not read the will himself, but rather that Mr Harley read it to him. Furthermore, when Mr Harley took instructions, perhaps over the telephone, he may have misheard Mr Luscombe's middle name so would himself be unaware of the error. 82I dismiss the second part of this explanation as pure speculation. Two careful men missing the error is very unlikely. Furthermore, even if I accepted Mr Bardossas' evidence, Mr Luscombe nevertheless signed the October Document. Ordinary experience teaches that a person is likely to pick up on a misspelling of their own name. The fact that Mr Luscombe apparently executed the October Document when a few centimetres above his signature he is incorrectly described in bold, capital and underlined letters as "Herbert Walton Luscombe" raises a real suspicion. The reasons advanced by Ms Healey do not dispel that suspicion. The name of Ms Healey's sister-in-law 83The October Document nominates as the substitutionary residuary beneficiary Ms Healey's sister-in-law "Jacqueline Daisy Johan". Mr Hyland submits that there is no explanation in the evidence as to how Mr Luscombe might have known Ms Healey's sister-in-law's full name for the purposes of instructing Mr Harley, if that is in fact what occurred. 84Ms Healey responds that over the many years of her relationship with Mr Luscombe it is not hard to imagine Mr Luscombe would have asked her for her sister-in-law's full name. It was accepted Ms Healey is unlikely to have volunteered it. This submission is speculative. 85The inclusion of Ms Johan's full name is a circumstance raising the Court's suspicions. Ms Healey's own evidence, even if I accepted it, is to the effect that Mr Luscombe never discussed his testamentary arrangements with her. Furthermore, on her own evidence, Mr Luscombe never met any of her family. Contrary to the submission put on her behalf, I find it very hard to imagine, in the absence of a testamentary discussion, a reason for Mr Luscombe to ever ask about Ms Johan's full name. 86In the course of her oral evidence Ms Healey deposed to referring to her sister-in-law in discussions with Mr Luscombe as "Jacquie". That much is entirely plausible. However, even on her own case I cannot see there ever having been an occasion for Ms Healey to have told Mr Luscombe her sister-in-law's full name. Having heard and seen Ms Healey give evidence in the witness box, I agree that it is highly unlikely that she would ever have referred to her sister-in-law in a formal way by her full name unless expressly asked by Mr Luscombe. 87The suspicion raised by this circumstance is therefore not dispelled. The reference to John 88Mr Hyland also drew attention to the fact that while in the July Will Mr Luscombe was referred to throughout as "my nephew John Walter Popham Luscombe", in the October Document he is referred to as "my nephew John Luscombe". Not only was this said to be significant in its own right, but it stood in stark contrast with Ms Johan being referred to with her middle name. It is submitted that this is another cause for suspicion. 89In response, Ms Healey submits that in preparing the July Will, Ms Tancred got John's full name from John himself. I accept that is correct. Furthermore, she points out that, for example, Ms Tancred did not get the full names of Mr Luscombe's cousins. John is adequately identified in the October Document as "my nephew". 90On the other hand, I have accepted that Mr Harley (assuming he prepared the October Document) was a punctilious solicitor. The October Document uses Mr Luscombe's full name (albeit misspelt), Ms Healey's full name (she confirmed in evidence she has no middle name) and Ms Johan's full name. On the basis of his other wills in evidence and what I take to be the general practice of solicitors in usually ascertaining the full names of beneficiaries in wills (see paragraph [78] above), I find that it is more likely than not that Mr Harley would have inquired as to John Luscombe's full name. 91In those circumstances, the failure to use John's full name in the October Document gives rise to a further unresolved suspicion in the mind of the Court. The way in which Mr Luscombe wrote his name 92On the July Will and the general power of attorney which he executed three days before, Mr Luscombe signed his name "H Luscombe", an example of which is reproduced in Schedule 3. On the October Document he wrote his name as "Herbert Luscombe" (see Schedule 2). I find that "H Luscombe" is his usual signature on the basis that all of the specimens provided to Ms Novotny for her expert handwriting analysis, including 110 cheques and especially the July Will and power of attorney were signed by Mr Luscombe in that way. I do not consider the one example of "Herbert Luscombe" on a cheque butt to be a signature: it is him writing his name. 93Mr Hyland submits that in circumstances where only three months beforehand he had signed both the July Will and the general power of attorney with his usual signature, it should raise a suspicion in the Court's mind that the October Document is apparently executed as Herbert Luscombe. Mr Hyland submits that the Court should find that he did not sign the will with the intention of executing as his will, but simply wrote his name on the paper. 94Ms Novotny's expert report concluded that it was "highly probable" that Mr Luscombe wrote the words "Herbert Luscombe" on the October Document. I find that it is his handwriting. 95However, Mr Hyland relies on Ms Novotny's observation that "the possibility must be considered that the questioned signature is not a signature of Mr Luscombe but rather it is his handwritten name" (emphasis in original). She also gave evidence in the witness box explaining the distinction between a handwritten name and a signature, namely that the latter is a mark of identification which is often specialised or personalised and stands well apart from their regular handwriting style. Her evidence was that Mr Luscombe's signature was personalised by the upper case "L" in Luscombe which extended below the baseline of the signature. Her cross-examination did not cause her to alter her opinion. The only reason that she could not be more confident so as to conclude that "Herbert Luscombe" in the October Document was the writing of a name, rather than a signature, was for "want of specimens". However, it was submitted for Mr Hyland that the additional signatures on the 110 cheques shown to Ms Novotny supported the opinion she had expressed. Almost all of the approximately 135 of Herbert Luscombe's specimen signatures had a baseline that differed from the questioned signature. 96Ms Healey's answer fastened on Ms Novotny's evidence that on formal documents people often write their full names. But Ms Novotny immediately accepted that there was no other "formal" document in evidence where he had done so. Such "formal documents" as she had were signed with his usual signature. Ms Healey had to resort to speculating that perhaps he wanted to show it was his full name, that it was him who was doing it. 97Ms Healey's submissions do not dispel the suspicion that has been raised in the Court's mind by the fact that Mr Luscombe wrote "Herbert Luscombe" on the October Document. That suspicion is that Mr Luscombe wrote his name on the piece of paper rather than intending to acknowledge the contents of the document as his last will and testament. In reaching this conclusion I have taken account of evidence to the effect that Mr Luscombe was too astute to be duped into writing his name on something he didn't' want to sign. However, it is not for Mr Hyland to prove alternative theories. The onus is on Ms Healey to satisfy me the writing is Mr Luscombe's signature. 98The evidence does not permit me to make any finding about whether he wrote his name on the piece of paper before or after the other words making up the October Document were added to the piece of paper. However, the suspicion which I have is based upon Ms Novotny's evidence to which I have referred in paragraph [95] above, the complete absence of any example of Mr Luscombe ever signing his name (as opposed to merely writing it out) as "Herbert Luscombe" and the fact that only three months earlier he executed the July Will and general power of attorney with what I have found to be his usual signature. 99I have also taken account of the fact that an "ESD examination" of the October Document included in Ms Novotny's report revealed an impression of the "H Luscombe signature". While Ms Novotny was unable to determine the significance of the presence of that impression, the contrast in the writing of his name as "Herbert Luscombe" is all the more stark when it is appreciated that at some time Mr Luscombe must have signed his name with his usual signature on a piece of paper that was sufficiently proximate to the paper used for the October Document to have created an impression of that signature on the latter piece of paper. 100This circumstance of how Mr Luscombe has written his name on the October Document raises one of the most powerful suspicions in my mind militating against the conclusion that he knew and approved of the contents of the October Document. Ms Healey has been unable to dispel that suspicion. The absence of a provision for cremation 101It was submitted for Mr Hyland that it should also raise a suspicion in the Court's mind that on 27 July 2006 the question of the disposition of his remains was sufficiently important to Mr Luscombe that he expressly asked for it to be included in the July Will, but no mention of it is made in the October Document. 102Ms Healey responds that the question of cremation may have been an afterthought in circumstances where, because of his recent hospital admission he was focussed on his mortality. He may have forgotten about his wish for cremation three months later. 103This matter does raise a suspicion in my mind. It is not dispelled by Ms Healey's explanation, which again is really just speculation. It if was important enough to raise especially in July, it is at least strange it was not included in October. It is not the kind of thing someone would forget about, particularly someone of Mr Luscombe's age. I accept Mr Hyland's answers that Mr Luscombe's July admission was not for a life threatening complaint and that intimations of mortality are necessarily a part of any occasion when a will is made. A different solicitor 104There is no evidence of any prior connection between Mr Luscombe and Mr Harley. Mr Luscombe lived in Homebush and, in October 2006, Mr Harley was practising from home in Dulwich Hill. The only matter connecting Mr Harley to the October Document is Mr Bardossas' evidence that Mr Harley was a friend of the other alleged attesting witness, Mr D'Souza. 105Mr Hyland submits that the alleged retainer of Mr Harley, with whom Mr Luscombe had no prior connection on the evidence, rather than going back to Piggott Stinson is a cause for the Court's suspicion. 106Ms Healey submits that Mr Luscombe would have been aware that John and Ms Tancred knew each other. John had his power of attorney and knew the contents of the July Will. It was said Mr Luscombe would not go back to Piggott Stinson because changing his will might upset John. 107I do not accept this essentially speculative explanation. Implicit in it is the proposition that Ms Tancred (or any other solicitor) would, in the absence of instructions, tell John about the change. It was Mr Luscobme who had told John the contents of the July Will. John had minimal contact with Ms Tancred, who was not John's solicitor. I do not think it plausible that Mr Luscombe would be concerned about his own solicitor telling John something without instructions to do so. 108I accept that the apparent change of solicitors is a matter for suspicion which has not been dispelled by Ms Healey. Did Mr Harley prepare the October Document? 109Even taking Mr Bardossas' evidence at face value, Mr Hyland submits that there are several circumstantial matters which make that evidence implausible insofar as it implicitly suggests Mr Harley was involved in preparing the October Document. Those matters may be summarised as: (1)Mr Harley's records did not disclose that any will file had been opened in respect of Herbert Luscombe, that he had ever been a client of Mr Harley or that any will for Mr Luscombe had been typed by Mr Harley's then contract secretary in October 2006. No instructions, notes, draft will or copy of the executed will were found amongst Mr Harley's will records when Ms Bauer, Mr Harley's partner, went through his records after his death. (2)The format of the will does not follow Mr Harley's usual requirements. It is not right justified and it was irregularly spaced, including single spacing. (3)The evidence of Ms Bauer and Mr Harley's secretaries (Ms Myers and Ms Sheehan) was that Mr Harley was a careful, precise and particular man who would not tolerate even small mistakes. It was most unlikely that Mr Harley would have made a mistake with Mr Luscombe's middle name, or not have picked up that mistake when he allegedly read the will to Mr Luscombe. 110Ms Healey's answer to these matters was to confess that the October Document had not been typed by Ms Sheehan (who was Mr Harley's contract secretary in October 2006) and then to avoid that consequence by submitting that, given Mr Harley apparently also worked at Merrylands and in the CBD, he may have had the will typed at one of the other places at which he was then working. The avoidance was further developed into this theory. It was submitted that the October Document was most likely brought into existence in the period between 10 October 2006 (when the Ainsley Nursing Home records show Mr Luscombe was taken home to Homebush by John for a trial discharge on social leave by John) and 28 October 2006 (being the date of the October Document). Mr Harley's preparation of the will was a job that was done very quickly as a favour to the financial adviser that Mr Luscombe used to visit in the city. It was submitted there must have been a connection between that financial adviser and Mr Harley, who undertook the preparation of the October Document as "part of his duties in the CBD, it wasn't done as part of his practice as a solicitor" (Mr Bell's submission in the course of final address). 111I have recorded in Schedule 1 that I am unable to accept Mr Bardossas' evidence as proving the matters stated therein on the balance of probabilities in large part because, for reasons which I will next develop, I have been left with very substantial doubt as to whether Mr Harley even prepared the October Document. I accept Mr Hyland's submissions that the matters to which he refers (set out in paragraph [109] above) raise a real suspicion as to whether Mr Harley even prepared the October Document. Ms Healey has been unable to dispel that suspicion. The explanation offered on her behalf is speculative. It accommodates but is itself unsupported by the facts that have been proven or might properly be inferred. 112Based on the evidence of Ms Bauer, Ms Myers, Ms Sheehan and the other wills in evidence (all discussed in Schedule 2), I find: (1)Mr Harley was a careful and punctilious solicitor who in 2006 had been in practice for 36 years. (2)He could not type and was computer illiterate. (3)It was most unlikely that any will prepared by him would include mistakes as fundamental as a misspelling of the testator's name. (4)Wills he prepared followed a precedent which included as a matter of practice: (a)being dated at the end using the traditional form of testimonium; (b)using the traditional long form of attestation; (c)being witnessed by him as one of the witnesses (presumably when he was not a beneficiary); (d)a back sheet; (e)being right justified and evenly spaced at more than single spacing; and (f)referring to beneficiaries and others by their full names including middle names. (5)He would open a file for each matter where he had instructions to prepare a will and keep a copy of the executed will and his fee note on the file. (6)The October Document was not typed by his then contract secretary Ms Sheehan. (7)There is no file, copy will or fee note in respect of the October Document. 113I make two additional comments in relation to these findings. 114I am conscious that the other wills in evidence (see paragraph [39] in Schedule 1 below) are, on one view, a small sample. Nevertheless, they cover a number of years and bear remarkable similarities. Against the background of the evidence that Mr Harley's practice was to use precedents which he would alter by hand on a case by case basis and then give to his secretary, I am satisfied that the other wills in evidence provide a proper basis for the findings which I have made on the balance of probabilities. 115Second, in relation to Mr Harley's practice (as I have found) to be one of the attesting witnesses to wills which he prepared, I make that finding on the basis of the other wills in evidence alone. However, I am fortified in that conclusion by my own understanding of the practice of solicitors in the last 30 years derived from preparing and attesting wills in both small and large firms and advising on numerous wills as counsel (see paragraph [78] above). 116When the October Document is compared to the findings which I have made in paragraph [112] above, particularly in relation to its form and the misspelling of Mr Luscombe's name, it is readily apparent that the October Document does not conform in any respect to a will which I find Mr Harley would have prepared in accordance with his usual practice. In those circumstances, the Court is left with the gravest of doubts as to the question of whether Mr Harley prepared the October Document. In reaching this conclusion I am conscious that it necessarily involves not accepting the implicit evidence of Mr Bardossas, whose evidence on the face of it is uncontradicted and who apparently had no interest in the outcome of the proceedings. I use the term "implicit" because while Mr Bardossas does not give any evidence of Mr Harley preparing the will, the fact of that preparation is a matter fundamental to the cogency of Mr Bardossas' account of events. Was Mr Harley present when the October Document was executed? 117Consequent upon the issue of whether Mr Harley prepared the October Document, Mr Hyland submits that there are real suspicions about whether Mr Harley was even present when the October Document was executed. It is submitted that the foundation of this suspicion is the anterior suspicion that Mr Harley did not even prepare the document. Furthermore, Mr Hyland submits that Mr Bardossas' evidence that he was called in from the car as a second witness is implausible because Mr Harley himself could have witnessed the October Document with Mr D'Souza or the unnamed woman who, according to Mr Bardossas, was also present. 118Ms Healey submitted that any such suspicions could be answered by accepting Mr Bardossas' evidence. He was a disinterested witness unconcerned in the will or Mr Luscombe's estate. Although vigorously cross-examined, it was not put to him that his evidence was false. 119I accept the submission for Mr Hyland that there is a real suspicion that, contrary to Ms Healey's case, Mr Harley was not present when the October Document was apparently executed and witnessed. Ms Healey has been unable to allay that suspicion for these reasons: (1)The fact that Ms Healey has been unable to allay the suspicion that Mr Harley had no part in drafting the October Document (see paragraphs [109] to [116] above). While that suspicion remains, there is an at least equal, if not greater, suspicion that Mr Harley was not present in the way Mr Bardossas alleged because of the implicit premise in Mr Bardossas' evidence and the explicit contention in Ms Healey's pleaded case (see paragraph [78(1)] of Schedule 1 below) that Mr Harley prepared the October Document. (2)By reason of (1) I am not satisfied that I should accept Mr Bardossas' evidence as proof on the balance of probabilities of what occurred in relation to the execution and attestation of the October Document. (3)As a matter of what I have found to be his practice (see paragraph [112] above) and common sense, Mr Harley could and would usually have been one of the attesting witnesses. There was no need for Mr Bardossas to be called out of the car and into the hotel in the way he says he was. (4)For the reasons set out in paragraphs [77] to [79] above, Mr Harley was one of the two obvious candidates to date the October Document and he did not do so. (5)Ms Healey's failure to call Mr D'Souza. 120It was submitted for Ms Healey that, in circumstances where Mr Willmott SC had not put to Mr Bardossas that his evidence was false, the rule in Browne v Dunn (1893) 6 R 67 applied. However, I do not think that submission assists Ms Healey for these reasons. First, the pleadings (see paragraph [78(1)] of Schedule 1 below) above, made it clear that Ms Healey's case of the October Document having been prepared by Mr Harley and executed by Mr Luscombe in the presence of Messrs Bardossas and D'Souza was plainly in issue. In those circumstances the rule did not apply: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224-5. Second, no objection was taken by Ms Healey to the admission of the various pieces of circumstantial evidence, including the other wills attributed to Mr Harley, that were clearly intended to cast doubt on Mr Bardossas' account. Third, there was no relevant unfairness to Mr Bardossas: the circumstantial matters relied upon were not matters of which he would be expected to have any knowledge. Putting them to him in cross-examination would have been a waste of time. Fourth, again in terms of unfairness to Mr Bardossas, I have no doubt that if he had been challenged as to the general truthfulness of his evidence, he would have maintained his evidence was true. In assessing his evidence I have assumed that would have been the case. Fifth, where Mr Hyland did not bear an onus and did not have to establish an alternative case, but rather only had to raise matters casting doubt on Ms Healey's case, I do not see how any unfairness to Mr Bardossas or Ms Healey arises. Sixth, it was not submitted for Ms Healey that any non-compliance with the rule meant that it was not open to me to be unpersuaded by Mr Bardossas' evidence. The only submission was that I could more readily accept his evidence because he had not been cross-examined to the effect that it was false. 121For the reasons I have given, Mr Bardossas' evidence does not assuage the concerns raised by Mr Hyland which cast real doubt on whether Mr Harley was even present at the relevant time. I therefore continue to hold a grave, undispelled suspicion, notwithstanding Mr Bardossas' evidence, that Mr Harley was not present when the October Document was allegedly executed and attested. The fact that I continue to hold that suspicion contributes to my ultimate conclusion that the fundamental suspicion that Mr Luscombe did not know and approve of the contents of the October Document has not been dispelled. The location and timing of the execution of the October Document 122Mr Hyland submits that the alleged location for the execution of the October Document (referred to by Mr Bardossas as the Horse and Carriage Hotel but accepted by the parties as being, if anything, the Horse and Jockey Hotel, Homebush) and that it occurred on a Saturday (which 28 October 2006 was) are both matters to raise suspicions. Mr Hyland submits that Mr Luscombe was a very private man (which I find to be the case) and that it is unlikely that he would have gone to a public house to meet with his solicitor and execute his will. It is submitted that he would more probably have been visited by Mr Harley at his home. It was also suggested that it would be unusual and unnecessary (this latter because Mr Luscombe was obviously unemployed) for the execution of the October Document to have been done on a Saturday. Reliance was also placed on the fact that Ms Bauer, Mr Harley's partner, gave evidence that he did not ever mention to her that he was going to meet a client in a public house on a Saturday (or any other day), although she did accept he sometimes saw clients on weekends. 123Ms Healey submitted that the venue was explicable and that there was nothing particularly suspicious about the execution of the October Document on a Saturday. In relation to the location, it was submitted that, as I accept, Mr Luscombe was a very private man. In particular, he did not like strangers visiting his home and would generally not let them in. There is ample evidence justifying this conclusion. Either knowing for himself or forewarned by Mr Harley that witnesses would be required, it was understandable that Mr Luscombe did not want the October Document executed at his home. He remained mobile and the hotel was not far away. A hotel could be counted upon as a place where independent witnesses may be found. Finally, it was said there was nothing particularly suspicious about the October Document being executed on a Saturday, noting that Ms Bauer had accepted that from time to time Mr Harley did see clients on a Saturday. 124I accept Ms Healey's submissions. The choice of venue may have been unorthodox, but for the reasons advanced by Ms Healey it was explicable and not necessarily suspicious. Given there was evidence that Mr Harley saw clients on weekends from time to time, nor was the choice of a Saturday anything which should detract from Ms Healey's attempt to prove the October Document. A private man announces his intentions to strangers 125Finally, it was submitted on behalf of Mr Hyland that if Mr Bardossas' account of events was to be accepted, it was a cause for suspicion that an otherwise private man would apparently so readily announce something as personal, and potentially embarrassing, as the reasons why he was changing his will to at least two perfect strangers in such a spontaneous fashion. 126While Mr Luscombe's clear preference for privacy and avoidance of strangers may explain why the October Document was allegedly executed and attested in a public house rather than his home, those same features raise some suspicions in the Court's mind about the proposition that he would so readily explain his motivations to strangers. It was submitted for Ms Healey that whilst it was unknown why Mr Luscombe made his public explanation. it was not inconceivable that he did. It was an immense decision and he may have wished for some understanding or approval. 127Ms Healey's explanation is speculative and unconvincing. Given Mr Luscombe's private nature and concern about strangers, it raises some suspicion, which has not been dispelled, in the Court's mind as to whether it ever occurred. I have reached that conclusion independently of the more general difficulties I have expressed in relation to accepting Mr Bardossas' evidence. Conclusions and orders 128The ultimate issue is whether I am satisfied on the balance of probabilities as specified in s 140 of the Evidence Act that the October Document is the last will and testament of Mr Luscombe as a free and capable testator. The onus to establish that fact lies on Mrs Healey. In determining whether I am satisfied of that fact I have taken account of the matters referred to in s 140(2) of the Evidence Act as discussed in paragraphs [27] to [32] above. 129Having considered all of the evidence I am not satisfied that the October Document is Mr Luscombe's last will and testament made as a free and capable testator. This is because Ms Healey has failed to establish affirmatively to my satisfaction that Mr Luscombe knew what he was doing when he executed the October Document. She has failed to do so because she has been unable to dispel the suspicions which I have considered above. 130Some of those suspicions have been very significant in the conclusion I have reached: the change in testamentary bounty; the misspelling of Mr Luscombe's name; the way in which he wrote his name; the use of a different solicitor; and, whether Mr Harley prepared the October Document or was present at its execution. The other suspicions to which I have referred in my reasons are less significant because if taken individually they are not large matters. However, their importance is that each of them raises yet another question mark about the October Document in the context of, and in addition to, those other suspicions which I have described as very significant. 131Taken together, with all the other evidence, the unresolved suspicions which I have identified in these reasons have the consequence that I am not satisfied that the October Document contains Mr Luscombe's real testamentary intentions. Therefore, the October Document is not entitled to probate. 132My conclusions may be summarised as follows: (1)The improbabilities surrounding Mr Bardossas' account of the execution and attestation of the October Document mean that Ms Healey has failed to provide even prima facie evidence of due execution and attestation. (2)As a corollary of (1), and relying on my finding that the October Document was not signed by Mr Luscombe with the intention of assenting to its contents, Ms Healey has failed to satisfy me for the purposes of s 7 of the Wills Probate and Administration Act that the October Document was signed by Mr Luscombe or that, even if it was signed by him, Mr Luscombe intended by that signature to give effect to the October Document as his last will and testament. (3)Assuming that Mr Bardossas' evidence could be regarded as prima facie evidence of due execution and attestation of the October Document, there are a number of matters which give rise to very real suspicions that Mr Luscombe did not know and approve of the contents of the October Document. (4)By reason of (3), Ms Healey bore the onus of dispelling those suspicions, which she has failed to do. (5)Given that Ms Healey has been unable to dispel those suspicions and after a jealous and vigilant examination of the evidence I am unable to reach a state of judicial satisfaction on the balance of probabilities that the October Document represents the last will and testament of Mr Luscombe as a free and willing testator. (6)The October Document is not to be admitted into probate. (7)Therefore, there is no basis upon which to revoke the grant of probate to John in common form of the July Will. 133I will hear the parties as to the form of orders to give effect to these reasons and costs. SCHEDULE ONE John Walter Luscombe 1. John is Mr Luscombe's deceased nephew. He died on 2 February 2011 before this matter was heard, but most of his affidavit sworn on 19 November 2010 was admitted into evidence. 2. John deposed that he knew Mr Luscombe's signature well. Mr Luscombe was meticulous about his affairs and, to John's observation, he signed his name "H Luscombe". To John's observation, Mr Luscombe was a careful man who read everything he signed and was quite pedantic about making sure that everything was in order. John attributed this to Mr Luscombe having spent his professional life in banking. 3. In late June/early July 2006 Mr Luscombe had a fall at his Homebush home. He fractured his pelvis and his ribs and was admitted to Concord Hospital. He was later transferred from Concord Hospital to the Ainsley Nursing Home at Burwood. 4. John said that he visited Mr Luscombe regularly at Concord Hospital. It was on one of those occasions that John said he suggested to Mr Luscombe that he (Mr Luscombe) should review his will. He offered to arrange for his solicitor to visit him in hospital. He says that Mr Luscombe replied that he did not have a will, but that he had his own solicitor at Piggott Stinson. He asked John to contact his solicitor to make arrangements for the preparation of a will. 5. John spoke to Ms Tancred at Piggott Stinson. John was not present when either the power of attorney from Mr Luscombe in his favour or the will was executed. However, Mr Luscombe did inform him of the contents of the July Will. 6. John deposed that Mr Luscombe was very unhappy at the Ainsley Nursing Home and was very keen to be taken home. Ultimately, Mr Luscombe did return to his home at Homebush where nurses were arranged to visit him and a cleaning service was retained. 7. Once Mr Luscombe had returned to Homebush, John commenced to purchase Mr Luscombe's food requirements. He would normally telephone Mr Luscombe on a Wednesday to ascertain his requirements, purchase the food items on Thursday and deliver them to Mr Luscombe on Friday or Saturday, staying with him between one to one and a half hours. During those visits Mr Luscombe would from time to time comment about visits from two or three neighbours and the nurses that had been arranged. Mr Luscombe never mentioned any person by the name of Laura Healey. 8. On occasions when John was visiting Mr Luscombe there would be visits from the latter's neighbours Angela Pacialeo and Margaret Hill, but apart from those persons the only people he met were the nurses, one of whom John recalled as being Ms Jenson. 9. Finally, John deposed that he had never met Laura Healey, nor did Mr Luscombe ever mention her name to him. Nor did Mr Luscombe ever mention Jacqueline Daisy Johan, Anthony D'Souza or John Bardossas. 10. Although John's evidence could not be the subject of cross examination, I accept it with one exception. That exception is dealt with in paragraph [12] below. Jeanette Teresa Tancred 11 Ms Tancred was the solicitor who took Mr Luscombe's instructions in relation to the July Will and was one of the witnesses to it. The findings which I have set out at paragraphs [33] to [41] of my judgment above are based on her evidence. That evidence was not challenged in cross-examination. I accept it. 12. In one ultimately minor respect I have preferred her evidence over that of John. As I have set out in paragraph [4] above, it was John's evidence that he raised the question of a will with Mr Luscombe. Ms Tancred's contemporaneous file note dated 19 July 2006 of her first conversation with John records "John has spoken to Bert [Mr Luscombe] with regards to granting a Power of Attorney to John to attend to matters financial". There is no reference to a will. The power of attorney was executed on 25 July 2006. Ms Tancred has a further file note of a conversation with a social worker at the hospital on 27 July recording "I adv (sic) he had requested I prepare a will for him. I will call on him this pm". Furthermore, when she was cross examined concerning the power of attorney she gave evidence that "He (Mr Luscombe) raised the issue of a will with me. It was not my intention to be there to take instructions for a will; I understood it was just for a Power of Attorney". 13. Mr Luscombe's recollection of these events does not appear to have been assisted by any contemporaneous records. By reason of her contemporaneous file notes, I prefer Ms Tancred's evidence that John's initial discussions with Mr Luscombe were confined to a power of attorney and that it was Mr Luscombe who subsequently raised the question of a will with Ms Tancred. Bhavini Sundarjee 14. At the relevant time Ms Sundarjee was employed as a paralegal at Pigott Stinson. She witnessed the July Will with Ms Tancred and heard Mr Luscombe say "I would like you to add Wilfred Luscombe and Louise Luscombe as beneficiaries of my estate in clause 5 of my will". She was not required for cross-examination. I accept her evidence. Peta Bollinger 15. Peta Bollinger was not required for cross-examination. She is a solicitor practising at Merrylands. Mr Harley operated a legal practice at Merrylands under the name and style of DS Harley until 2002 when Ms Bollinger purchased the practice. Mr Harley did not practice in the firm after it was sold to Ms Bollinger. Ms Bollinger could not locate any reference to any files, deed packets or records that related to Mr Luscombe. I accept her evidence. Alan John Hyland 16. Alan John Hyland is the executor appointed under John's will. He is a retired accountant and John's long-term partner. On 25 March 2011 Mr Hyland was granted probate of John's will. The value of John's estate (excluding Mr Luscombe's estate) was sworn for probate at approximately $10 million. 17. In cross-examination Mr Hyland said that he met John when he was in his late 20s and the deceased was in his early 40s. He moved in with John one year after meeting him and lived with him until John died in 2011. 18. John went to see Mr Luscombe every Saturday, leaving his Woollahra home around 7.00am and returning by lunch time, Mr Hyland saw Mr Luscombe a few times a year, including Christmases and birthdays. He visited Mr Luscombe once at the Ainsley Nursing Home. 19. Mr Hyland frankly agreed in cross-examination that he and Mr Luscombe were not friends. He accepted they were different types of people who had nothing in common. 20. I accept Mr Hyland's evidence. Johanna Bauer 21. Johanna Bauer is a now retired supply chain manager who lived in a relationship with Mr Harley from 1997 until his death in 2007. She recalled Mr Harley working full time from their home from about 2005 until his death. In March 2006 he underwent heart bypass surgery and then continued to work from home. For around 12 months at this time he also went to a business in the city once or twice a week where he did work connected with real estate. She could not remember the name of the business. 22. Ms Bauer could not locate a file in the name of Mr Luscombe among the files he maintained at their home. She identified a number of problems with the October Document that led her to believe that Mr Harley did not write it. 23. Ms. Bauer knew of Mr D'Souza because Mr Harley mentioned to her that he had met Mr D'Souza as a result of his (Mr D'Souza's) son being charged with an offence. However, she was unaware as to whether or not Mr Harley acted for the son or provided any legal advice. Ms. Bauer believed that Mr Harley from time to time might have advanced monies to Mr D'Souza in respect of the latter's second hand car sales business. At the time of Mr Harley's death he was doing legal work for Mr D'Souza's son that related to either the sale or purchase of real estate. 24. Ms Bauer described Mr Harley as unable to type and computer illiterate. She confirmed the procedure that she had seen Mr Harley would follow in writing documents or amending precedents by hand and faxing them to his secretaries to type up. At various times those secretaries were Lesley Myers and Sandra Sheehan. She never heard him mention anyone else. To her observation Mr Harley was fussy and extremely careful with his documents, sending them back to his secretaries when there were spelling or other errors. Ms Bauer said she was also familiar with Mr Harley's handwriting and signature. She identified the handwriting and signature of Mr Harley on the G, B, D and Y wills (see paragraph 39 below). However, in her view none of the handwriting on the October Document was Mr Harley's. 25. Under cross-examination, Ms Bauer said that she had thrown out some of Mr Harley's files and diaries, including his 2006 diary. This was confirmed in an earlier statement made by her. Ms. Bauer clarified this by saying that in 2010 she threw out any files that were seven years and older. She also confirmed that she did not throw out any of Mr Harley's will files because they were in a corner of the garage that she did not go near. While they never went to a pub together and he never talked about visiting hotels, Ms Bauer acknowledged that Mr Harley met clients on Saturdays, but not very often. 26. I accept her evidence. Lesley Myers 27. At the relevant time Lesley Myers was a paralegal and secretary. She met Mr Harley more than 20 years ago when the firm at which she previously worked used to have many transactions with Mr Harley's sole practice. Mr Harley was also a friend of another solicitor that Ms Myers used to work for, Mark Solomon. In 2004, Mr Solomon said that due to Mr Harley having had a heart attack he would be taking over his work. She went to Mr Harley's office to collect his files. When Mr Harley recovered from his illness he would work from home, but came in to Mr Solomon's office to collect mail and to use Ms Myers as his own personal secretary. 28. Ms Myers would follow a specific process when undertaking work for Mr Harley. When she received new instructions, he would write the name of the client on the front of a folder in which he would give Ms Myers the letter or document to be typed when he came into the office. Ms Myers knew Mr Harley's handwriting to be very clear and precise. She saw the October Document and was of the view that Mr Harley did not write the handwritten date. Ms Myers said that Mr Harley had cursive writing as opposed to the print that was featured on the October Document. She never saw him print (as opposed to cursive). Ms Myers said she did not type the October Document. It did not look like any document Mr Harley would have permitted to go to a client while she worked for him. She has never heard of Mr Luscombe or Ms Healey. 29. In addition to dropping documents in to her at Mr Solomon's office, Mr Harley would fax handwritten drafts to her. She never knew him to type. He was fastidious about documents and she never saw him misspell of a client's name. He instructed her that all documents should be one and a half or double spaced and right justified. 30. Ms Myers worked for Mr Harley until October 2006, when she introduced him to Ms Sheehan. Her evidence was not challenged in cross-examination and I accept it. Sandra Lisa Sheehan 31. Sandra Sheehan is a legal secretary. She was introduced to Mr Harley by Ms Myers in October 2006, from which time she worked for him until his death. Her fee summary of contract work for Mr Harley for October 2006 makes no reference to typing a will for Mr Luscombe. 32. Ms Sheehan said that Mr Harley would work from a room in his home at Dulwich Hill where his clients would go. Ms Sheehan said that Mr Harley never mentioned a client named Mr Luscombe. The October Document did not look like any document she produced for Mr Harley. Ms Sheehan did not believe that Mr Harley wrote the October Document. She said that the handwritten date was not Mr Harley's handwriting, that Mr Harley would not have had errors on the wills he prepared nor would he have prepared a one page will. 33. Ms Sheehan would do Mr Harley's typing and said that she did not type the October Document even though as far as she knew she did all his typing at that time. Mr Harley did once mention Mr D'Souza because Mr Harley claimed that Mr D'Souza owed him money. 34. Ms Sheehan said the procedure for typing Mr Harley's wills was to receive a faxed precedent with the names obliterated and the new names he wanted put in (the beneficiaries, the testator, etc) handwritten by him, to type the document and finally to send it back to him via a fax machine. The precedent she received from Mr Harley upon which she based the first of 20 or so wills that she typed for him was sent to her in 2007. 35. Ms Sheehan also confirmed that she never knew of anyone else doing Mr Harley's typing and had no reason to believe that anyone else was doing it during the time she worked for him. Ms Sheehan also said that the October Document did not look anything like the precedent wills that Mr Harley gave her, which included generous spacing and right justifications. She said that every will she typed for Mr Harley had a back sheet with Mr Harley's name and phone number. She had downloaded the C and H wills and fee notes from her computer (see paragraph 39 below). 36. In cross-examination Ms Sheehan said she could not recall Mr Harley ever mentioning he was also working for a company in the city. However she did recall meeting him once on the corner of King and Elizabeth Streets to deliver some documents to him. 37. I accept Ms Sheehan's evidence. Monica Kanaan 38. Monica Kanaan was not required for cross-examination. She is a solicitor practising at Merrylands. In August 2007 after the death of Mr Harley, Ms Kanaan's firm completed a small number of his client matters. She searched for records maintained in relation to those matters and there was no record or document which related to Mr Luscombe. I accept her evidence. Mr Harley's wills 39. Mr Hyland tendered a number of wills which had undoubtedly been prepared by Mr Harley over a period of years. Those wills displayed some consistent features. Mr & Mrs G - 1999 * Each will is not right justified but is regularly spaced. * Each will uses a mixture of full names (by which I mean one or more middle names are specified) and people identified only by Christian name and surname (although I do not know in the latter case whether they in fact had middle names). * Each will is dated at the end as part of what I shall refer to as the traditional form of testimonium: IN WITNESS WHEREOF I have hereunto set my hand to this my will on this 16th day of July in the year of our Lord one thousand nine hundred and ninety nine. * Each will uses what I shall refer to as the traditional long form attestation: SIGNED by the Testator as and for his last Will and Testament in the presence of us both present at the same time who at his request in his presence and in the sight of each other have hereunto subscribed our names as witnesses. * The wills are witnessed by Mr Harley and a person giving her occupation as "Secretary". * Each will has a back sheet. * There are executed and attested copies of the wills on file, as well as a fee note. Mr & Mrs B - 1999 * Each will is right justified and regularly spaced. * The will uses a mixture of full names (by which I mean one or more middle names as specified in addition to the Christian and surnames) and people identified only by Christian name and surname (although I do not know in the latter case whether they in fact all used middle names). * Each will is dated at the end using the traditional form of testimonium. * Each will uses the traditional long form attestation. * Each will is witnessed by Mr Harley and a person giving her occupation as "Secretary". * Each of the wills has a back sheet. * There are executed and attested copies of each will on file, as well as a fee note. Three members of the D family - 2002 * These wills were prepared when he was working from home. * Each will is right justified and regularly spaced. * None of the persons referred to in the will is identified using a middle name, but a reason for this may be the apparent ethnicity of the family concerned. * Each will is dated at the end using the traditional form of testimonium. * Each will uses the traditional long form attestation. * Each will is witnessed by Mr Harley and Ms Bauer. * Each will has a back sheet. * There are executed and attested copies of each will on the file, as well as a fee note. Ms Y - 2004 * This will was produced when Mr Harley was working from home. * The will is right justified and regularly spaced. * Each person referred to in the will is referred to including their middle name. * The will is dated at the end using the traditional form of testimonium. * The will uses the traditional long form attestation. * The will is witnessed by Mr Harley and a male person who gives no occupation. * The will has a back sheet. * There is an executed and attested copy on file, as well as a fee note. Mrs H - 2007 * This will and fee note have been printed from Ms Sheehan's computer as work having been done by her for Mr Harley when he was working from home. The will is therefore unexecuted. * The will is right justified and regularly spaced. * All persons referred to in the will have their middle names included. * The will has been prepared for dating at the end using the traditional testimonium but omitting "in the year of our Lord". * The will is to be dated at the end using the traditional long form attestation. * The will has a back sheet. * A fee note was prepared. Ms C - 2007 * This will and fee note have been printed from Ms Sheehan's computer as work having been done for Mr Harley when he was working from home. The will is therefore unexecuted. * The will is right justified and regularly spaced. * Persons in the will are referred to both with and without middle names. * The will has been prepared for dating at the end using the traditional testimonium but omitting any reference to "the year of our Lord". * The will uses the traditional long form attestation. * The will has a back sheet. * A fee note was prepared. Michelle Helena Novotny 40. Ms Novotny's evidence is dealt with in paragraphs [94] and [95] of the judgment above. She did not alter her views in cross-examination. I accept her evidence. Angela Pacialeo 41. Angela Pacialeo lived on Meredith Street, about 100-120 metres from Mr Luscombe's home. Ms Pacialeo met Mr Luscombe in 2001 when she walked past his home. She would buy him items from the shops and bring them to him. Ms Pacialeo would stop by Mr Luscombe's house once every two weeks to see if he needed anything. She would bring him soup on occasion. Ms Pacialeo said that Mr Luscombe was very fond of his nephew and on one occasion said "John is the owner of the home, it belongs to him not me". The only persons Ms Pacialeo saw at Mr Luscombe's premises were John and Mr Hyland, home visiting nurse Ms Jenson and an Asian female who she believed to be the cleaner. Ms Pacialeo recalled Mr Luscombe asking her to arrange with John for her to be his Vitalcall emergency contact. 42. Her cross-examination did not result in any change to her evidence. I accept her evidence. Craig Latimer 43. Craig Latimer was formerly employed by the Seminary of the Good Shepherd as a maintenance man and groundkeeper. The seminary was opposite Mr Luscombe's house. From around 2005-2006, after overcoming Mr Luscombe's initial suspicions, Mr Latimer would mow Mr Luscombe's lawns for free. Mr Latimer believed that once while he was mowing Mr Luscombe's lawn a female person asked him who he was. Mr Latimer explained. The female drove a black Mercedes motor vehicle and was a regular visitor at Mr Luscombe's home. Apart from that Mr Latimer never saw any other person at Mr Luscombe's home. He described Mr Luscombe as a private, quiet person who became more chatty once he got to know you. 44, Under cross-examination, Mr Latimer confirmed that Mr Luscombe was a man who very much kept to himself. He also recalled that he had seen Angela Pacialeo visiting Mr Luscombe. He knew Ms Pacialeo because she used to work at the seminary. 45. I accept Mr Latimer's evidence. Suellen Catherine Jenson 46. Suellen Catherine Jenson is a registered nurse who worked for Regal Health Services ("Regal") for 6 years. Regal provided home nursing services to Mr Luscombe after he left Ainsley Nursing Home. Her duties involved providing care at home. Ms Jenson visited Mr Luscombe in his home and provide him with care from December 2006. She began to cook him meals and did his washing. Ms Jenson said that Mr Luscombe often talked positively about John, of whom he was very proud. Ms Jenson recalled Mr Luscombe saying that his late sister's friend lived close by and that she would visit him a few times a year and bring him food. It was Ms Jenson who found Mr Luscombe on the ground three days before he died. He asked her to call John and told her that he was dying and she was in charge "until John gets here". She rang for an ambulance and rang John. 47. Under cross-examination Ms Jenson confirmed that she had two black Mercedes for a period of about six years. She confirmed that was the car she drove to see her patients in 2007. Ms Jenson knew nothing of a cleaner who cleaned the house. Ms Jenson confirmed that she would visit Mr Luscombe once and then eventually twice a day at regular times, for 15-20 minutes for medication monitoring. 48. Ms Jenson said that Mr Luscombe would go to the bank at North Strathfield and to the city on the odd occasion, which he would get to by walking from his house to Homebush railway station and getting on a train to Strathfield railway station or the city. Ms Jenson stated that Mr Luscombe told her he would go to the city to get his hair cut, and to see a financial adviser, although she had also referred to a solicitor in an earlier statement. Ms Jenson under cross-examination said that she was "pretty sure" Mr Luscombe had told her the person was a financial adviser. 49. Ms Jenson also confirmed that as Mr Luscombe became frailer, she would visit him more regularly, beyond the call of her professional duties. However, she agreed that Mr Luscombe was mentally sharp until the end of his life and would not fall for tricks such as signing his name on something. 50. I accept Ms Jenson's evidence. Jill Leys 51. Jill Leys is a qualified registered nurse who was employed by Regal from April 2007. She first visited Mr Luscombe some time later that year. In her examination in chief, Ms Leys said she used to visit Mr Luscombe on the weekends and the odd day she did relief during the week. Ms Leys would visit Mr Luscombe to ensure that he was eating properly. 52. Ms Leys recalled meeting a female friend of Mr Luscombe's who was a neighbour on two occasions. The friend had brought food for Mr Luscombe. 53. Under cross-examination, Ms Leys confirmed Mr Luscombe was frail but alert. 54. I accept Ms Ley's evidence. Frances Moncrieff Wilke 55. Frances Moncrieff Wilke is a retired nursing sister previously employed by Regal. Ms Wilke visited Mr Luscombe's home from 2007 in her capacity of supervisor of the nursing sisters who visited him. Ms Wilke said that Mr Luscombe spoke of his nephew John and in no way criticised him, volunteering "he looks after me" and "he comes and visits". 56. Under cross-examination Ms Wilke said that Mr Luscombe was very loathe to let strangers in, but that once he knew her face and who she was, he would let her in. Ms Wilke identified Ms Jenson's car as a Mercedes. 57. I accept Ms Wilke's evidence. Laura Healey 58. Ms Healey's evidence is summarised in paragraphs [42] to [50] above of the judgment. Her evidence says nothing about the circumstances of the creation or execution and attestation of the October Document, but is essential to explain how she and her sister-in-law came to be included in it. Furthermore, on Ms Healey's case, her evidence is essential to justify the almost complete change in Mr Luscombe's testamentary intentions between July and October 2006. 59. It was submitted for Mr Hyland that it was highly improbable that Ms Healey had the relationship with Mr Luscombe which she described or that she had even met him at all. The reasons underlying this submission were: (1)The general improbability of her story. (2)Her evidence in cross-examination that throughout the years she claimed that she had associated with him, Mr Luscombe never spoke about himself, his family, his health, his background and that she did not think it necessary to ask him. This extended to him not giving her his telephone number, the fact that she did not think to ask him for it and, it seems, did not give her number to him. It would be almost inevitable in a long term intimate relationship that such details would have passed between Ms Healey and Mr Luscombe. The fact that, on her evidence, they did not, indicated that either there was no relationship at all or that it never reached the degree of familiarity which she claimed. (3)The frequency with which she visited him is highly questionable. On her own account between 2004 and 2006 she visited him less frequently, apart from what was described by Mr Hyland as "the fortuitous visit" in about October 2006 when she said he gave her the package of documents, and she saw him infrequently thereafter. There is no corroboration from any other person who visited Mr Luscombe's home that she was ever there. Her evidence about driving to Homebush on the chance that he would be there and going back home if he was not is implausible. She never visited him at Concord Hospital or the Ainsley Nursing Home. It was submitted that, taken in its totality, the evidence of the frequency of her visits was unconvincing. (4)Her evidence that she was given the package of documents which included the October Document by Mr Luscombe "in or about October 2006" to take to a solicitor "when you cannot see me around" was implausible. The documents which he gave to her were in evidence. It was submitted that, with the exception of the October Document, the documents which she said she received from Mr Luscombe were a "hodge podge" that did not meet the description of a carefully considered set of documents that a person would leave with someone else to assist in the orderly disposition of their affairs. (5)There were a number of inconsistencies between her evidence and the account which she gave to her first solicitor, Ms Joseph, on 19 March 2009. I consider this submission in the next paragraph. 60. The first solicitor who Ms Healey consulted was Ms Vivien Joseph. Mr Hyland tendered Ms Joseph's file note of what I infer was her first conference with Ms Healey. The note is dated 19 March 2009 (Mr Luscombe having died on 18 January 2009) and records a conference taking place between 11.38am and 12.21pm. Relevant parts are (reproducing the spelling and grammar precisely): Mrs Hearley came in a little early than her appointment. She said that she can't read or write English. Her dear friend Herbert gave her some documents 4 months ago for her to keep with her ... She gave me a plastic envelope containing documents. I went through the documents and found an original will of Herbert Walter Luscome - 28 October 2006. I explained that he had made her an executor. ... She started crying. I explained the process. ... She said she can't do this. I said that we will assist her but she needs to gather the info. ... She didn't know he had died a gentleman that used to go and mow his lawn told her that he had died and the property was empty. ... I said that she needs to speak with a family member and find out what has happened. She said that she will speak with John or his neice. She said that she met him as he was a friend of her father's. He used to visit her father whilst he was in a nursing home. Then when her father passed away she went to see Herbert @ his home in Homebush. She would go every fortnight, have a coffee or tea with him. She said that later on she had trouble with her son but she still went to see him when she could. He was a lovely man. He never spoke to any of his family not that she met. But he did mention that he had a nephew John and a neice. Client will speak to John or niece. ... I told her we need the original [death certificate]. She doesn't even know where he is buried. ... 61. It was submitted that there were serious inconsistencies between Ms Healey's affidavit evidence, substantially repeated in chief in the witness box, about her relationship with Mr Luscombe and the account which she gave to Ms Joseph recorded in the file note. She told Ms Joseph she had received the packet of documents "four months ago" (December 2008), but her sworn evidence said it was October 2006. In her oral evidence she had said she consulted Ms Joseph in order to find Mr Luscombe's whereabouts, yet the file note recorded that she had learned of his death because she had been told of the fact by a gardener. Her affidavit and oral evidence to the Court made no reference to the apparent prior relationship between her father and Mr Luscombe referred to in the file note, but she apparently did not tell Ms Joseph about her meeting Mr Luscombe at the shops. Finally, in both her written and oral evidence she had claimed that she had seen a "for sale" sign outside the house (while unable to read, she said she recognised the type of sign), yet Mr Hyland was able to demonstrate by the tender of an agency agreement that the property was not put into the hands of an agent until 22 April 2009, one month after her visit to Ms Joseph. 62. The essence of the submissions put on behalf of Ms Healey in answer to the matters raised by Mr Hyland was that she is an elderly lady in poor health, uneducated and illiterate. It was to be expected that her ability to express herself would be limited and her difficulties in recollection and organising her thoughts are understandable. Confusion about dates and persons, including at one point in her oral evidence about her own family, is therefore explicable. Cross-examination did not cause her to depart from the essentials of her evidence, including the circumstances in which she met Mr Luscombe. 63. Ms Healey also sought to cast some doubt upon Ms Joseph's file note. It was submitted that the file note did not appear to be contemporaneous, but rather looked as though it was written up some time after the conference. The notes were not put in direct speech and appeared to be an interpretation of what was said. The several references to John's niece (he did not have one) demonstrated either that Ms Joseph or Ms Healey was confused. 64. Dealing with Ms Joseph's file note, I do not accept the criticism sought to be made by Ms Healey. While its neatness and style suggest that it was not written during the conference, I have no difficulty on the basis of its form and detail in inferring that it was produced very shortly after the conference. There is nothing about it that would support the conclusion that Ms Joseph made any mistakes. To the extent that there are errors, for example in relation to the several references to John's niece, the fact that there is more than one such reference causes me to conclude that any error in relation to that matter came from Ms Healey, accurately recorded by Ms Joseph. 65. Looking at the wider contest between the discrepancies and inconsistencies identified by Mr Hyland and the general exculpatory submissions offered in response by Ms Healey, I accept Mr Hyland's submissions that the matters identified on his behalf raise a serious question about the extent to which I can accept Ms Healey's evidence. On the other hand, I do not consider Ms Healey's evidence to be so inherently improbable that I would find it to be untrue. 66. The ordinary course of human experience, including in cases which have come before the Court, establishes that people do, from time to time, choose to have relationships which they keep secret from everyone. That may be the case here. However, the price of that secrecy during the life of the parties to the relationship is that, by definition, independent corroboration of its existence is impossible. That is Ms Healey's problem in the present case. 67. By reason of the following matters, Ms Healey's evidence fails to satisfy me on the balance of probabilities that her relationship with Mr Luscombe, such as it was, was of the frequency or intensity (including being such as to excite sufficient concern on the part of Mr Luscombe for Ms Healey's sick son's well being) as she claims: (1)The matters raised on behalf of Mr Hyland, including particularly the fact that Mr Luscombe and Ms Healey were never seen together by any of the other various persons who gave evidence as visiting Mr Luscombe's home from time to time. (2)Given that I am unpersuaded by Mr Bardossas' evidence for the reasons set out in paragraphs [70] and following below, the absence of evidence corroborating their relationship that could be attributed to Mr Luscombe. (3)Ms Healey's failure to call Mr D'Souza (discussed in paragraphs [77] and following below). 68. I do find on the balance of probabilities that Mr Luscombe and Ms Healey knew each other, that she visited him on more than one occasion at his home (but not with the frequency which she alleges) and that she told him about her personal circumstances. I am not satisfied to the requisite standard that Ms Healey's own evidence, or the other evidence advanced in her case, enables me to find that they engaged in a sexual relationship or, more importantly, that she received the October Document and the other papers at the time or in the circumstances she alleges. 69. However, for the reasons which I set out in paragraph [71] of the judgment, even if I had accepted Ms Healey's evidence as proof of the matters she alleges in their totality, it would not affect my ultimate decision in this case. John Bardossas 70. John Bardossas is a mechanic. I have set out his evidence in paragraph [52] of the judgment above. In his examination in chief, Mr Bardossas said that a middle-aged lady was standing next to Mr Luscombe whilst the October Document was being executed. He was not introduced to this lady. He said that this woman was not Laura Healey who he had seen twice, maybe three times in connection with court proceedings. 71. Under cross-examination, Mr Bardossas said that the date "28 October" was already written on the October Document before he signed it. When asked about the relationship between Mr Harley and Mr D'Souza, Mr Bardossas said that Mr Harley was Mr D'Souza's solicitor and the two had a business association. 72. Mr Willmott asked Mr Bardossas in which order the events had occurred. Mr Bardossas was inconsistent in his re-telling in four ways. First Mr Bardossas initially said that the October Document was read first and then the reasons for amending the July Will were provided. Mr Bardossas later said that Mr Luscombe explained why he was changing his will and then Mr Harley read the October Document. 73. Second Mr Bardossas contradicted his affidavit when he said that he and Mr D'Souza were already at the car auction when Mr D'Souza received the phone call from Mr Harley. In his affidavit he said that they were travelling to the car auction when Mr D'Souza received the phone call. Unlike his affidavit, Mr Bardossas also said that he did not hear the conversation that took place between Mr D'Souza and Mr Harley. In his affidavit Mr Bardossas said that he (sic) "remember[ed] that conversation last few moments". 74. Third, Mr Willmott put it to Mr Bardossas that 28 October was a Saturday and asked whether car auctions happened on Saturdays. Mr Bardossas said he did not know. 75. Fourth, Mr Bardossas confirmed that he heard Mr Luscombe say that he wanted to leave all of his property to Laura Healey. However, this was inconsistent with an earlier statement he had made. 76. The following circumstantial matters satisfy me that I cannot accept Mr Bardossas' evidence as proof on the balance of probabilities of the matters which he alleges: (1)The fundamental premise for Mr Bardossas' alleged involvement is implausible because it was not necessary for him to be called into the hotel out of the car in which he was waiting to be an additional independent witness to Mr Luscombe's alleged execution of the October Document. In addition to Mr D'Souza, the other potential independent witnesses allegedly present were Mr Harley (see my findings as to his practice in paragraph [112] of the judgment above) or the unidentified woman (assuming that the unidentified woman who Mr Bardossas says was present was neither Ms Healey nor her sister-in-law, both of who were beneficiaries under the October Document). (2)For the reasons set out in paragraphs [109] to [121] of the judgment above, I have a very grave suspicion which Ms Healey has been unable to dispel that Mr Harley was neither responsible for the drafting of the October Document nor present at its alleged execution by Mr Luscombe; (3)Mr Luscombe was a private man, reluctant to discuss his affairs and his family, except with those whom he had come to know and trust. It is accordingly seriously improbable that he would blurt out to strangers, as alleged by Mr Bardossas, an apparently very personal, and, perhaps for a man of his generation, embarrassing reason for wishing to disinherit John. (4)Ms Healey's failure to call Mr D'Souza. The absence of Mr D'Souza 77. Like Mr Bardossas, the importance of Mr D'Souza for Ms Healey's case was threefold. First, he was allegedly an attesting witness. Second, he was one of the two potential witnesses who could give evidence of an explanation from Mr Luscombe himself as to why he was making the October Document almost entirely in favour of Ms Healey. Third, his evidence was highly relevant to prove Mr Harley's alleged participation in the drafting and execution of the October Document. Ms Healey's failure to call Mr D'Souza to give evidence is a matter of considerable significance in relation to all of those matters, each of which was in issue in the proceedings. 78. The facts in relation to Mr D'Souza's non-appearance are: (1)Ms Healey's cross-claim alleged: 4. Herbert made later will dated 28 October 2006 ("October 2006 will") revoking all prior Wills and naming the cross claimant as executor and trustee. Particulars The will was drafted by the late Don Harley, solicitor, and Herbert Luscombe's signature was witnessed by Anthony D'Souza and John Bardossas. 5. The October 2006 will was Herbert Luscombe's last Will and Testament. (2)Mr Hyland's defence to the cross-claim denied those paragraphs 4 and 5. (3)An informal affidavit from Mr D'Souza dated 10 April 2010 was included in the Court Book which I originally admitted into evidence on the first day of the hearing. It was included on the basis that he would be made available for cross-examination. (4)On day two of the hearing there was still no suggestion that Mr D'Souza would not be available for cross-examination. At the start of that day I directed that the evidence in chief of Ms Healey and the two attesting witnesses should be given orally rather than by relying on their affidavits. I also said to Mr Bell before his witnesses were called: And finally I just want to put you on notice Mr Bell that it may be, and I have no final view on the matter, that in regard to the way that onus of proof may shift during the course of the hearing, you may need to give some thought to establishing or seeking to establish affirmatively that the testator knew and understood the contents of the October Document. (5)Mr Wilmott SC then informed me that it was his intention after cross-examination to draw attention to the principle that if suspicious circumstances were raised concerning the will being propounded, the onus fell on the propounder to dispel those circumstances. He referred to Nock v Austin and to a 19th century authority [Barry v Butlin (1838) 2 Moo PCC 480] which was to the effect that if suspicions fell in relation to a large part of the estate, then quite substantial evidence was required which had to be compelling to the Court to dispel those suspicions. (6)Mr Bardossas then gave his evidence and was cross-examined by Mr Wilmott SC. While Mr Bardossas was cross-examined on a number of aspects of his account of the circumstances in which the October Document was executed and attested, Mr Wilmott SC never put to Mr Bardossas in terms that Mr Bardossas' evidence was false. (7)After Mr Bardossas, Ms Healey commenced giving her evidence on day two of the hearing, which concluded with her cross-examination incomplete. (8)At the commencement of day three, Mr Bell informed me that Ms Healey was unwell and had gone to see a doctor. He sought an adjournment at least until 1.00pm while further instructions were obtained as to Ms Healey's condition. This exchange then occurred; His Honour: Is Mr D'Souza available for cross-examination? Bell: We received a call from a solicitor acting for Mr D'Souza this morning and he said he wishes to speak further with Mr D'Souza and his present advice is that he has advised Mr D'Souza not to give evidence until he has spoken with him further. His Honour: When were you informed of that? Bell: We received a call this morning. Arrangements had been made for Mr D'Souza to be available at 10.00am this morning. (9)At the end of that exchange I said to Mr Bell: So, I would really, in the absence of some persuasive reason, expect Mr D'Souza to be available at two o'clock, whether or not Ms Healey is well enough to be back. (10)The matter was then adjourned to 12.30pm. (11)At 12.30pm Mr Bell informed the Court: Bell: In regards to Mr D'Souza, we are informed Mr D'Souza will not be here at 2.00pm. I am unable to give the Court a time or date when he will be here. In those circumstances, my recollection is what purported to be his affidavit was not accepted by the Court. There was an objection taken. Wilmott: I think what your Honour said was that, if he were here, and the mechanics would be such that he could then adopt what he said in his affidavit, that could be accepted. At the moment it is not sworn as an affidavit. It may well be that your Honour overrode that, by virtue of the fact that your Honour made a direction that the evidence had to proceed orally anyway. His Honour: I have given some thought to the direction in any event and it seems to me that the affidavits stand as part of the evidence. The fact is they will also be required to give the evidence orally and then one has to make what one can of how the evidence comes out orally versus what is in the affidavit. So I am not troubled by that. However, it does seem to me that, insofar as I allowed Mr D'Souza's so called affidavit to stand, it was rather in the expectation that he would be presenting himself for cross-examination and would effectively adopt the contents of the document that is in the Court Book. Mr Bell, is it the case that you are not in a position to tell me at the moment whether or not Mr D'Souza will ever feature in your case? Bell: Yes, your Honour, that is the position. His Honour: In those circumstances, insofar as I marked the Court Book, subject to all proper objections, as an exhibit in the proceedings, we will remove from the Court book, both in my working copy and in the Court's exhibit, pages 70, 71 and 72 [Mr Bardossas' informal affidavit]. I return those to you. We will see what happens. Bell: Your Honour, otherwise I am not making any application at the moment. I am not asking your Honour to decide this or even give leave for me to make an application in the future, but I may make an application to read Mr D'Souza's affidavit in the future. As I said, I am not asking your Honour to decide that. His Honour: That is entirely a matter for you, Mr Bell. There is simply no evidence before me from Mr D'Souza at the moment. Bell: Thank you, your Honour. (12)Owing to Ms Healey's indisposition, the case proceeded on the third day with Mr Wilmott SC interposing a number of his witnesses. At the end of the day further discussion ensued about the course of the hearing: Wilmott: The only witness who I would be prejudiced about intervening before cross-examining Mr D'Souza, is Dr Novotny. Otherwise I don't think I am prejudiced by those witnesses being intervened and I am happy to arrange for those witnesses to be here at 10.00 tomorrow and I can deal with those witnesses. I don't regard myself as being prejudiced, or our case being prejudiced, unless something unexpected of course happens by calling them before completing my cross-examination of Ms Healey and cross-examination of Mr D'Souza. If they were here at 10 o'clock, I would ask that they be given as little inconvenience as possible ... Bell: My learned friend also asked about Mr D'Souza. I think it is a bit unlikely. I think that is still the position, and we would have to seek leave, given what has happened thus far, in calling him. We may know further tomorrow morning and we will certainly let Mr Wilmott know. His Honour: That is a matter for you and we will deal with it when and if we have to. (13)On day four of the hearing, with Mr Wilmott SC continuing to assist the Court in using the time available by interposing his witnesses, there was the following exchange: Willmott: I call Dr Novotny but just before she is called, I want to make this clear. The witness D'Souza who we expected to be here has not attended for cross-examination. There would be matters I would put to him in cross-examination which would touch upon the supplementary report of Dr Novotny which has not been entered into evidence at this stage on the grounds of relevance. In order for me to make it relevant, it would mean that matters that I would raise with Mr D'Souza, if it turns out Mr D'Souza is called, and if in the event that in the course of cross-examination, the matters canvassed in that supplementary report became relevant, I would seek leave to call Dr Novotny again. I merely make that clear to protect our position. His Honour: Yes, I understand. Willmott: Mr Bell's assurance to me is it is exceedingly unlikely that Mr D'Souza will appear and attend. That being so, I think it is reasonably likely that we could deal with Dr Novotny's evidence and I don't need to rely upon that supplementary report, in fact I can't rely upon it because I have no basis of connecting it at the moment. I say if it turns out if Mr D'Souza does give evidence, and I cross-examine him, then that issue becomes a live issue. I will seek leave to recall Dr Novotny and seek to rely upon that supplementary report. ... His Honour: I am slightly troubled Mr Bell in terms of the order and the way the matter is going. What I have running through my mind is whether we are approaching a point where you ought be required to close your case, subject to the question of Ms Healey coming back to be cross-examined. I don't think we are there yet but you might want to give that some thought. I think it is approaching the point that it may be productive of unfairness to have the question of Mr D'Souza not yet definitely resolved. I of course accept everything you have told me. I accept you have told Mr Willmott that it was highly unlikely he would appear but the time may come where that will become a position of certainty. Bell: I appreciate that your Honour. His Honour: I think in the circumstances Mr Willmott, you have preserved your position. (14)The trial then continued with Mr Hyland's witnesses being interposed. Day four of the trial concluded with Mr Hyland's witnesses all having been called, notwithstanding that the cross-examination of Ms Healey had not been completed and her case had not yet formally been closed. The case was then further adjourned due to Ms Healey's indisposition. (15)Immediately before the adjournment at the end of day four, I drew these matters to the attention of the parties: His Honour: That being said, Mr Bell, I think it appropriate that I give you some indication of matters about which I have formed a very provisional view, recognising, of course, that the evidence is not quite completed and, no doubt, you will be able to also get what I am about to say off the transcript. But the position seems to be this. Your client bears the onus of proving, on the balance of probabilities ... that the October Document should be admitted to probate as the last will and testament of Herbert Walter Luscombe. The first point is it seems to me you do need to address me as to why I should be satisfied as to due execution. The second matter is that I have formed a provisional view that, assuming due execution, there are circumstances attending or at least relevant to the preparation and execution of the October Document which has raised the Court's suspicion as to whether there was knowledge and approval of the document by Herbert Walter Luscombe. Therefore, you should address the question of how you prove affirmatively, on the balance of probabilities, that the said Herbert Walter Luscombe knew and approved of the contents of the October Document. The circumstances giving rise to the Court's suspicion are as follows: ... Then, the fifth reason is whether the will was prepared by Mr Harley at all. The sixth reason is whether Mr Harley was even present when it was attested. There certainly seems to be a body of evidence which would support the conclusion that the will was neither prepared by Mr Harley nor that Mr Harley was present. The fact of the matter is, as I see the evidence at the moment, the only evidence I have of any of those matters is really Mr Bardossas as the attesting witness. There seems to be a very real question whether I should accept his evidence. ... I now have before me a number of wills of which Mr Harley was the solicitor. In every case - and you are free to have access to those exhibits - as I would expect of a sole practitioner, the witnesses are the solicitor and his legal secretary. That seems to me to raise a question that your side needs to address, as to the inherent probability of Mr Bardossas' evidence. Of course you will be aware of the evidence that has been adduced and no doubt you will be prepared to deal with it in relation to whether or not it was a will prepared by Mr Harley at all, given the case that's been made there. ... I wish to stress, Mr Bell, that these are very provisional matters. I appreciate the evidence hasn't been closed. My mind remains open, but I do have to say, having looked at the cases, in a case like this, if there is suspicion, then it seems to me the Court should tell a party in your client's position that it has those suspicions and to give you the opportunity to address the reasons why the Court has gained those suspicions. (16)On day five Ms Healey returned to the witness box to complete her cross-examination and her case closed without Mr D'Souza's evidence having been called. Ms Healey made no application for a subpoena to be issued to Mr D'Souza to give evidence, notwithstanding that her lawyers had his signed, informal affidavit. 79. The history I have just recited makes it clear Ms Healey was going to call Mr D'Souza to corroborate Mr Bardossas' evidence but did not do so. In those circumstances, I rely on two distinct, but conceptually related, principles for the conclusion I have reached that I should take account of the failure to call Mr D'Souza as a factor weighing against the acceptance of both Ms Healey's and Mr Bardossas' evidence and therefore adversely affecting whether Ms Healey has discharged her onus of proof. 80. The first was expressed in Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J as follows (emphasis added): Then we come to the question how far the onus of proof which lay upon the plaintiff was satisfied. She had the burden of establishing the original creation of the indebtedness of the deceased to her, and undoubtedly it is established that in cases of this sort the Court scrutinises very carefully the claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue. In the case of Lachmi Parshad v Maharajah Narendro Kishore Singh Bahadur LR 19 IR 9 some observations were made by the Privy Council with reference to the sufficiency of proof. In that case their Lordships were not satisfied that the plaintiff had established a reasonably clear case. For instance, he had failed to bring forward evidence which he ought to have brought forward, and which was available. That was a material circumstance, and having regard also to some other circumstances of the case their Lordships thought that his appeal should fail. Lord Morris said - "In an action brought to recover money against an executor, or, as in this case, the heir, of a deceased person, it has always been considered necessary to establish as reasonably clear a case as the facts will admit of, to guard against the danger of false claims being brought against a person who is dead and thus is not able to come forward and give an account for himself. 81. It was submitted for Ms Healey that the key to the principle in Plunkett v Bull, if it be a principle, was Lord Morris' reference to establishing "as reasonably clear a case as the facts will admit of". It was submitted that Mr Bardossas' evidence was clear and nothing further was required. It was only if the veracity of Mr Bardossas' evidence had been challenged that more would have had to have been done. 82. I do not agree with those submissions for two reasons. First, they do not give sufficient attention to "the facts" as referred to by Lord Morris. In this case the facts are that the alleged events took place in the presence of at least two independent witnesses who are still alive and available to give evidence. The circumstances of this case are such that "to establish as reasonably clear a case as the facts will admit of" requires both of those witnesses to have been called if they were available. Second, it follows that an attempt to impeach the first of the available witnesses who is called is not a prerequisite to engaging both the desirability and the need to call any further available witnesses. 83. Ms Healey's case, insofar as it depended on dispelling suspicions created by the change in Mr Luscombe's testamentary bounty between July and October 2006, was a case which depended upon providing an explanation for that change. The alleged relationship between Ms Healey and Mr Luscombe was advanced as the explanation. On her own case, it was a relationship only known to her and to Mr Luscombe. In those circumstances, having regard to what was said in Plunkett v Bull, Ms Healey would be expected to call every witness who could provide independent corroboration of a statement by Mr Luscombe acknowledging their relationship and the reasons for the change in his testamentary bounty. 84. By not calling Mr D'Souza, she failed to call one of two apparently independent witnesses who could corroborate Mr Luscombe's alleged acknowledgement of their relationship. The fact that she may have had to issue a subpoena to compel Mr D'Souza's attendance is irrelevant, particularly when her legal team were already in possession of a signed, although informal, affidavit from him. These same considerations apply equally to her attempt to prove due execution and attestation of the October Document and Mr Harley's alleged role. 85. Second, the rule in Jones v Dunkel (1959) 101 CLR 298 is applicable to Ms Healey's failure to compel Mr D'Souza to give evidence. Ms Healey's case necessarily entailed that Mr D'Souza was there when the October Document was executed and attested. His evidence was known to Ms Healey's lawyers and they clearly intended to call him. I infer that their purposes in doing so were not just in and of itself to prove the matters to which he deposed, but also to facilitate proof of those matters by corroborating Mr Bardossas' evidence. 86. The reason ultimately proffered for not calling Mr D'Souza, in this case for not compelling his attendance by subpoena, was that no relevant challenge had been made to Mr Bardossas. Implicit in this was the forensic determination that the relevant matters had been sufficiently proved. 87. A party's perception that the opponent has not made out its case on the balance of probabilities is not a sufficient explanation to displace a Jones v Dunkel inference: Adler v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504 at [664]. The same must be the case in relation to a party's perception that its case has been made out. The validity of that explanation is particularly undermined in these proceedings because the Court itself had put Ms Healey on notice before the close of her case that there was a very real question about the inherent probability of Mr Bardossas' evidence and whether it should be accepted at all (see paragraph [78(15)] above). 88. In reaching this conclusion I have been mindful of two further matters. 89. First, it is said the rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence. The rule is not concerned to require time to be taken up with calling unnecessary witnesses. That must be so. Oath helping is no longer the law. However, in the circumstances of this case Mr D'Souza was not an unnecessary witness. The matters to which Mr D'Souza's evidence went were clearly in issue in the proceedings and the manner in which the hearing had been conducted, including an express indication of concern about the reliability of Mr Bardossas' evidence from the Court itself, meant that the failure to compel Mr D'Souza to give evidence carried an obvious risk for Ms Healey in terms of satisfying the onus of proof which she bore. 90. Second, legal principle, in addition to the forensic necessity to which I have just referred, supported the calling of Mr D'Souza. Being on notice that there was a real risk that Mr Bardossas' evidence would not be accepted as proving due execution, Ms Healey was bound to call the other attesting witness, if he was available, which Mr D'Souza plainly was: In Re Levy [1953] VR 652 at 660. 91. For these reasons, I apply the rule in Jones v Dunkel to draw the inference that Mr D'Souza's evidence would not have assisted Ms Healey's case. To be precise, I infer that Mr D'Souza's evidence would not have assisted her case in that, at the very least, it would not have provided what would otherwise be expected to be evidence corroborating Mr Bardossas' account of events. SCHEDULE 2 - THE OCTOBER DOCUMENT SCHEDULE 3 - HERBERT LUSCOMBE'S SIGNATURE Amendments 25 October 2013 - 51 - first line, Schedule 1 changed to Schedule 285 - fourth line, our own evidence changed to her own evidence91 (Schedule 1) in lines 2 and 3 Bardossas' replaced with D'Souza's Amended paragraphs: 51 and 85 of judgment and paragraph 91 of Schedule One 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: 18 February 2016