Addison v Shore - [2016] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ADDISON -v- SHORE [2016] WASC 223

CORAM: KENNETH MARTIN J

HEARD: 8 JUNE 2016

DELIVERED : 26 JULY 2016

FILE NO/S: CIV 2912 of 2015

MATTER :The Will of Mark William Shore late of 3 Bushby Close, Mount Tarcoola in the State of Western Australia, Mining Service Person, deceased Probate No 5927/2015

BETWEEN: JENNIFER DIANE ADDISON
Plaintiff
AND
SUDAKAN SHORE
First Defendant
RHYS NEWTON SHORE
Second Defendant

Catchwords:

Wills and probate - Solemn form - Informal will - Disputed signature on document sought to be proved as testamentary disposition - Disputed testamentary intention - Onus of proof on plaintiff - Potential intestacy - Major estate asset being proceeds of life insurance policy - Otherwise insolvent estate - Effects of potential intestacy upon recipients of proceeds of life insurance policy

Legislation:

Administration Act 1903 (WA)
Life Insurance Act 1995 (Cth)
Wills Act 1970 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts
First Defendant              :     Mr R P Arndt
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Slater + Gordon Lawyers
First Defendant              :     Ryan Arndt Barrister & Solicitor
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Dolan v Dolan [2007] WASC 249
Oreski v Ikac [2008] WASCA 220
Re The Estate of Peter Charles Cornford (dec) [2015] SASC 15
Re The Estate of Sean James Robbins (dec); Ex Parte Robbins [2008] WASC 243
Riches v McInnes [2010] WASC 298
KENNETH MARTIN J:

Overview

Mark Shore committed suicide on 24 October 2014. That event happened at his place of employment ‑ at a remote mining location in the North West of Western Australia where he was engaged on a fly in/fly out (FIFO) basis. Mark left a widow (the first defendant - Sudakan). There was also an adult son (the second defendant, Rhys Shore), from an earlier relationship when Mark was younger.
Twenty days before his death, it is contended that Mark intentionally signed a typed document expressing his testamentary wishes. The typed document had been prepared by his mother, Mrs Verna McPherson. It bears a handwritten date, 4 October 2014 (the 4 October document).
It is argued by the plaintiff upon this application that the 4 October document ought be accepted as an informal will made by Mark, under pt X of the Wills Act 1970 (WA) and as such, admitted to probate. There arises a first tier level dispute over whether or not the 4 October document actually does bear Mark Shore's signature. His widow, Sudakan as first defendant contends to the contrary.
The terms of the 4 October document explicitly dispose of most of Mark's property and assets as between Sudakan and Rhys. Significantly however, the 4 October document directs, in effect, that Mark's property and assets be first used to meet and discharge Mark's debts. Mark's debts at the time of his death were of a considerable magnitude.
The 4 October document's terms explicitly appoint Mark's sister, namely the plaintiff, Mrs Jennifer Diane Addison (Jennifer), as his executrix and personal representative.
Consequently, Jennifer now brings the present application seeking to have the 4 October document admitted to probate in solemn form ‑ as Mark's informal will.
The 4 October document plainly does not meet the formal requirements of the Wills Act so as to be recognised as his last will and testament and then, to carry a presumption as to his testamentary intention. That is because the 4 October document was only ever witnessed (as regards Mark's alleged signature) by his mother, Verna ‑ who admittedly had prepared the document. Verna swears she saw Mark apply his signature to the document on the evening of Saturday, 4 October 2014 at her home at Hillarys, Perth (where Mark, Sudakan and Sudakan's two children had been staying as guests ‑ before returning to their home in Geraldton).
Two witnesses are required to witness the signature of a testator/testatrix for there to be a valid will pursuant to s 8(c) of the Wills Act. That requirement was not met here.
The 4 October document on its face purports to appoint Jennifer as his personal representative and executrix. But the evidence is that Mark at no point before his death told Jennifer of her appointment, or about the 4 October document. In fact, Jennifer only learned of her appointment as executrix under this document some days after Mark's funeral and burial ‑ which occurred at Perth (Pinnaroo) on Friday 7 November 2014. That was after Mark's body had been transported from the north west of Western Australia to Perth by air (with some unfortunate delays in that process) to facilitate a coronial examination at Perth.
Sudakan, as I mentioned, opposes the present application by Jennifer to admit the 4 October document to probate as Mark's informal will under pt X of the Wills Act. At the trial conducted before me Sudakan, whilst providing a witness statement in anticipation of giving evidence, in the end did not actually attend court for the trial. Hence no evidence was received from her. Obviously she could not be cross‑examined. For reasons not satisfactorily explained Sudakan had remained at Kalbarri and did not travel to Perth to attend or to give evidence at this trial ‑ to the considerable surprise as I noted at the time of her counsel.
By the pleaded defence however Sudakan formally disputes, as I mentioned, that the signature which is observable on the 4 October document is that of her late husband, Mark.
There is also no evidence in this trial that Mark ever informed Sudakan, or for that matter any other person, as to the existence of the 4 October document (other than the evidence of his mother who drew it, and who says she saw Mark sign it before she witnessed his signature).
So the state of the evidence at the end of the trial is that prior to Mark's tragic death on 24 October 2014, only his mother says that she proposed and knew of the existence of the 4 October document and what Mark had done by singing it. She being the only witness to his signature.
The document had always been kept in Verna's possession ‑ even after she says Mark signed it and she witnessed his signature on 4 October 2014.
The 4 October document's existence came to light after Verna says she disclosed its existence to Jennifer and to Jennifer's engaged legal adviser, a Mr Henry Tham of Clifton Tham, on the day before Mark's funeral service in Perth. That was at the offices of Clifton Tham on Thursday, 6 November 2014. This was in very distressing circumstances relating to Sudakan's then threat by her lawyer (Mr Arndt) to injunct the proposed Perth burial service and funeral organised for Mark by his mother and sister (at Pinnaroo), rather than as Sudakan had wanted (and indeed demanded by threatening an injunction if her wishes were not agreed to), at Geraldton.
The threatened injunction was not proceeded with after a telephone conversation between Mr Tham and Mr Arndt at that Thursday meeting.
As I mentioned Mark, Sudakan and Sudakan's two children had all resided together at Geraldton prior to his death ‑ although Mark travelled to the north west to work on a FIFO basis for periods. But with his family Mark would visit Perth to spend time with his family from time to time ‑ including in the period between Thursday 2 October to Sunday 5 October 2014.
The essential question arising in the trial then, is whether Mark is to be assessed as having died without leaving a valid will (ie intestate), or whether the document bearing date 4 October 2014 is to be accepted as Mark's informal will and as such, admitted to probate as Jennifer seeks on this application. If Mark died intestate, then his estate must be administered in accordance with the Administration Act1903 (WA) ‑ with his property and assets essentially being allocated as between Sudakan, as his widow, and Rhys as Mark's only biological child. (Rhys enters a submitting appearance to these proceedings and does not otherwise seek to participate).
If there is an informal will which is admitted to probate, then Mark's estate would then be distributed in accord with its terms and most fundamentally, by the application of his property and assets being first directed towards the meeting and discharging of his debts. Only after Mark's debts are met would any residual proceeds then be distributed to Sudakan and Rhys by the terms of the 4 October 2014 document.
But if Mark died intestate, the proceeds of an insurance policy upon Mark's life would be governed by s 205(1)(a) of the Life Insurance Act 1995 (Cth). That whole section says:
205 Protection of policy money on person's death
(1)If, on the death of a person, money becomes payable to the person's estate under a policy effected on the person's life, the following provisions apply:
(a)except as permitted by paragraph (b), the money is not liable to be applied or made available:
(i)under any judgment, order or process of a court; or
(ii)in any other manner whatsoever;
in payment of the person's debts;
(b)the money may be applied in payment of a debt of the person if:
(i)the person had entered into a contract that provided expressly for the money to be so applied; or
(ii)the person had charged the money with the payment of the debt; or
(iii)the person gave an express direction, in his or her will or other testamentary document signed by the person, that the money be so applied;
(c)none of the following constitutes an express direction for the purposes of subparagraph (b)(iii):
(i)a mere direction that debts be paid;
(ii)a charge of debts on the whole or a part of the person's estate;
(iii)the creation of a trust for the payment of debts.
…
By s 205(1)(a), the proceeds of the policy on Mark's life will not be liable to be applied or made available under any judgment, order or process of a court or in any other manner whatsoever in payment of Mark's debts ‑ unless the circumstances are found to be as designated under s 205(1)(b)(iii) of the Act: see the observations of EM Heenan J in Riches v McInnes [2010] WASC 298 [24], citing Re The Estate of Sean James Robbins (dec); Ex Parte Robbins [2008] WASC 243. See also the ex tempore judgment, Re The Estate of Peter Charles Cornford (dec) [2015] SASC 15. An informal will would be a testamentary document meeting the parameters of s 205(1)(b)(iii).
In the present circumstances the proceeds of Mark's life insurance policy are the significant asset of his estate ‑ in the amount of $638,140.79. If the 4 October document is accepted as an informal will, and thereby an expression of his testamentary intention by Mark, then the threshold requirement of s 205(1)(b) as regards a need for an express direction by Mark to use the proceeds of that life insurance policy to first meet his debts, would be satisfied. If not, the proceeds cannot be used to meet debt and that position would significantly advantage Sudakan and Rhys.

Ten early fundamentals

It is convenient at the outset to mention the following factors which are of strategic importance to my ensuing evaluations. They are as follows:
a)There is no other potential or rival testamentary disposition instrument that was left by Mark beyond the 4 October document. Hence, the only potential written expression of Mark's testamentary intentions that is open for consideration is via the document of 4 October 2014. So, it is either that document, or a scenario of intestacy.
b)All parties accept that the 4 October document, since it is at best only an instrument towards which Mark's alleged signature is said to be witnessed by just one person (his mother Verna), it cannot be accepted as a valid will for the purposes of s 8 of the Wills Act ‑ which section requires there be two witnesses to a testator or testatrix's signature which are indorsed upon the written instrument.
c)Nevertheless, the 4 October document, if it is found to be genuinely signed by Mark, carries a potential to be accepted and acted upon as his testamentary disposition, as long as it meets the requirements of pt X of the Wills Act s 32. Such a conclusion is put in dispute by Sudakan as regards her pleaded challenge against the authenticity of a signature for Mark that is seen on the document ‑ and was at best only ever witnessed by one person - his mother.
d)Also live as a trial issue consideration is that even if the 4 October document is found to carry Mark's authentic signature, then a second issue arises as to whether the instrument can meet the legal threshold for acceptance as an informal will to be so accepted. The 4 October document would need to be assessed as an expression of Mark's testamentary intention at the time to dispose of his property as per the terms of that document, 'without anything more'. A court can dispense with the requirements for formalities under the Wills Act if, in accordance with pt X of that Act, the court is satisfied that the court intended the document to constitute his last will: see Oreski v Ikac [2008] WASCA 220 [50] ‑ [55].
By illustration, is an example of an unexecuted draft will drawn by a lawyer upon a client's instructions. Such a draft does not necessarily qualify as meeting the threshold for acceptance, as an informal will under pt X, as it may not establish that the would be testator/testatrix had finally made up their mind to dispose of their property and assets that way. That is because people in such situations are known to be equivocating in terms of how they will finally dispose of their estate amongst potential beneficiaries. They sometimes do change their minds or make changes before executing what becomes their final will instrument. That issue will be a question to be answered here, even if the 4 October document is found to carry Mark's authentic signature.
e)Where there is a validly executed will in conformity with the requirements of s 8 of the Wills Act, there follows what is a legal presumption of testamentary intention. But here, that presumption will never be present in the face of a 4 October document that at best, might rise to a level of being accepted as an informal will, under pt X of the Wills Act s 32. For such cases it is clear, and there is no argument in this trial, that an onus of proof falls (at the civil standard of the balance of probabilities) upon the party propounding acceptance of the informal document ‑ to prove testamentary intention of Mark as regards the 4 October document: see Dolan v Dolan [2007] WASC 249 [15] ‑ [16]. The question of onus is significant in this trial. It is accepted that the onus falls upon Jennifer to prove her late brother's testamentary intention as regards the 4 October document.
f)Jennifer, in essence, seeks to meet and discharge that onus of proof, by contending the evidence of her (and Mark's) mother, Verna McPherson, should be accepted - especially, evidence as to the events surrounding Saturday evening 4 October 2014. Verna's evidence, which I will set out at greater length later in these reasons, is that on that occasion Mark, Sudakan and Sudakan's two children were staying as guests until the next morning, at her and her husband Bill's home at Hillarys, Perth. Around 9.30 pm that night Verna says she took the typed 4 October document, which she had prepared, to Mark where they were sitting outside after dinner and that she witnessed him sign that document in her presence. No one else was present. Early the next morning Mark, Sudakan and the children left and drove back to Geraldton. The 4 October document, on Verna's evidence, always remained with her. It so remained until and after Mark's death on 24 October 2014. That was the position for the document until 10 November 2014, when she delivered it to Mr Henry Tham.
(g)If Verna's evidence about the events of 4 October 2014 is not accepted, then in essence, this case must fail. There would then be a following scenario of intestacy for Mark's estate.
h)A handwriting expert engaged by Jennifer, a Mr McGinn, has prepared an expert report addressing the authenticity of the signature that is purportedly that of Mark, as seen on the document of 4 October 2014. Mr McGinn gave evidence and was cross‑examined at the trial about the authenticity of the questioned signature of Mark's upon the 4 October document, which he examined forensically - then providing his export report to the parties in this litigation. At the end, Mr McGinn's expert opinion is expressed as being 'inconclusive' ‑ upon the issue of the questioned signature of Mark. I return to explore expert handwriting analysis issues at greater length in the reasons.
i)There was at one time a formal plea by Sudakan raised in her defence, as to an existence of undue influence, and a lack of capacity in Mark, as regards the 4 October document ‑ even if he had genuinely signed that document. However that plea was later explicitly abandoned (once advanced under the former par 4 of the defence) by excision amendments made to Sudakan's defence pleading on 19 February 2016. Hence, no issues as to undue influence or a lack of capacity in Mark can now arise for consideration in this trial following the explicit abandonment of those pleas by Sudakan.
j)As mentioned, the overwhelmingly significant financial asset of Mark's estate is the proceeds of his policy of life insurance which was in place at the time of his death. The proceeds of the life policy amount to approximately $638,140.79. As I have said, by the terms of s 205 of the Life Insurance Act (Cth) the proceeds of the policy are not to be applied towards a meeting of Mark's debt as deceased insured, unless there is an express direction from Mark to that effect.

Mark Shore's debts and the Girrawheen property

Mark left significant debts when he died, amounting to over (approximately) $700,000. The level of his debts may well exceed the value of his property and assets ‑ even with the proceeds of his life insurance. If the proceeds of his life insurance policy are not available to meet Mark's debts, then Mark's estate is left heavily insolvent.
Prior to his death Mark had taken out two significant loans with Pepper Finance Corporation Ltd (Pepper Finance). The loans were used for the purpose of purchasing a house and land for Mark and Sudakan at 3 Bushby Close, Mount Tarcoola, an outer suburb of Geraldton. The property was purchased in 2014 by Mark and Sudakan as joint tenants. The vendors of the Bushby Close were Mark's sister Jennifer, her husband Ronald Michael Addison, and Mark's mother, Verna McPherson. The purchase price was $450,000. The loan from Pepper Finance was secured by a first mortgage taken out over the acquired house and land. However, Pepper Finance required further security given the extent of the two loans to Mark. To that end, Pepper Finance also received a first registered mortgage over another house and land property that was located at Girrawheen, a Perth suburb. The Girrawheen property was beneficially owned by a discretionary trust of which the potential discretionary beneficiaries were Verna, Mark's sister Jennifer, Mark's brother, Jeffrey Shore and Mark himself. Mark had recently been appointed as the trustee of this Trust, replacing Jennifer as predecessor trustee.
Mark's financing arrangements with Pepper Finance resulted in the Girrawheen property being encumbered by a first registered mortgage securing a $364,500 loan against the Girrawheen land. The loan is in default. The Girrawheen property is at threat of being sold by the mortgagee to meet Mark's secured debt.
It is necessary to relate some further underlying circumstances in relation to this debt and the first registered mortgage now held by Pepper Finance against the Girrawheen property. The circumstances are somewhat unusual in terms of a dealing with trust property, to say the least.

From about March 2014, Mark had been appointed to replace his sister Jennifer as sole trustee of the Shore Family Trust. No financial statements showing trust assets and liabilities were provided during the trial. However each of Jennifer and Verna's evidence was to the effect that the significant (perhaps sole) asset of the trust was the Girrawheen property.
Verna's evidence explained how she and her late first husband had years ago received some accounting advice advocating an establishment of a trust to acquire the Girrawheen property. That was as long ago as 1986. Consequently, the Shore Family Trust, a discretionary trust was then established. That trust then looks to have acquired the Girrawheen property. Verna related how there had been a mortgage over the property which secured a loan, taken out to assist purchase, and how the loan had been gradually all paid off, shortly after Verna became a widow.
I have already identified the potential discretionary beneficiaries of this trust. However, Verna explained in her evidence that the Girrawheen property had been regarded by her as an 'investment for my retirement'. Such a view is somewhat inconsistent with the legal status of the Girrawheen property's position as the asset of a discretionary trust. Nevertheless Verna's view as to its financial significance concerning her retirement is a highly relevant motivating consideration.
After Mark's death Jennifer, as guardian, effectively reappointed herself as the sole trustee of this Trust. She holds that position currently.
Equally inconsistent with the status of the Girrawheen house and land as an asset of a discretionary trust, was Mark's utilisation of this asset (whilst he was sole trustee of the trust) as a first registered mortgage security for the benefit of Pepper Finance to secure his personal borrowings. Notwithstanding that curiosity, the trial evidence of Verna and by Jennifer as well, manifested to the effect that they had known of and indeed approved of Mark using the Girrawheen property in this way ‑ to advantage himself personally, albeit he was a trustee of the Trust. Evidence emerged that Jennifer at some earlier time had herself used the Girrawheen land to secure her own personal borrowings, but then in due course over time discharged those debts ‑ leaving the Girrawheen land unencumbered as a trust asset.
Verna's evidence explained that Mark's use of the Girrawheen property as a security for his personal borrowings, had taken place with an expectation (at least by herself) that at some unspecified future time there would be a refinancing by Mark of his loans with Pepper Finance to in effect repay those debts. Further, in that process she said Mark was to obtain a new loan from the Commonwealth Bank, secured only against the Bushby Close Mount Tarcoola property which he and Sudakan owned, thereby releasing the Girrawheen property from its encumbrance and hence against the potential for it to be lost as a trust asset, if Pepper Finance needed to execute against that asset to recover the personal debt of Mark.
However Verna's expectation as regards freeing this trust asset from its exposure and encumbrance to Pepper Finance as a security, never happened. As I mentioned, Pepper Finance now threatens to sell the Girrawheen property ‑ so as to realise funds in order to meet what is the unrepaid debt of Mark in respect of his loans from that institution. Pepper Finance would appear to have already realised the sale of its other second asset the Bushby Close property - to meet some of the debt due to it. But more debt remains.
I should observe at this point that the legal title in the Girrawheen property looks to have been transferred to Mark, at or about the time he came to be appointed as sole trustee of the Trust, replacing Jennifer in early 2014.
Hence it may now be seen more clearly that if the proceeds of Mark's life insurance policy are applied in accord with instructions given by the 4 October document, that an amount of $468,201.85 from the $638,140.79 proceeds of that policy, would then be applied towards repaying Mark's residual debt to Pepper Finance. Repayment of that level of Mark's debt would effectively discharge the secured first registered mortgage encumbrance which currently threatens that trust asset. But a repayment of the Pepper Finance debt from the proceeds of Mark's life policy, would be at the expense of Sudakan ‑ who would then receive far less of the insurance policy proceeds. That result would favour the resultant discretionary beneficiaries of the Trust namely, Jennifer, her surviving brother, Jeffrey, and her mother, Verna.
So it is that Jennifer brings these proceedings on a basis that she was named as Mark's executrix and personal representative under the 4 October document ‑ which she seeks to have proved as his informal will. Jennifer also holds the position of sole trustee of the Trust, following her reappointment in the wake of Mark's death.
It is now convenient to summarise some key evidence sources for the trial. I then move to consider and make some further chronological findings of fact, particularly over the period between October to November 2014 being the critical time and then render my determination. I first propose to summarise the state of the evidence concerning Mr McGinn's expert handwriting report which ultimately as I mentioned was inconclusive in its opinion towards the signature on the 4 October document.

Handwriting expert's report

A report of Document Examination Solutions of 26 May 2016 was commissioned at the behest of the plaintiff. It is a comprehensive report. Mr McGinn's expertise as a handwriting expert was not the subject of any challenge. It is convenient to start with a portion of Mr McGinn's executive summary, which is in the following terms:
1.…
2.The questioned signature does not present as a naturally executed signature of the specimen writer based on the provided specimen material. There are both similarities and dissimilarities present when the questioned and specimen signatures are compared. The dissimilarities are significant, they cannot be interpreted as a variation of the signature model established through examination of the provided specimen material.
3.There are opposing propositions as to why the signature does not present as a naturally executed formation, being:
a.a specimen writer has a wider range of variation than that seen in the provided specimen signatures, or;
b.Another writer has completed a freehand simulation of an 'M Shore' signature.
4.It is not possible to eliminate either of these propositions, and the opinion is inconclusive.
Mr McGinn's report identifies features of the questioned signature on the 4 October document not present upon sample Mark signatures provided to him. As outlined in the first defendant's submissions:
a.(Point D) ‑ retracing up the medial point of the 'M', while all of the samples have the upstroke forming an open 'little v shape';
b.(Point I) - loop in the upper portion of the 'h';
c.(Point L) - 'Hesitation' and sharp change in direction in the downward portion of the arch in the 'h';
d.(Points L, N) - different shape in the 'o';
e.(Points P, Q and R) - different shape in the 'r' and connecting stroke between the 'r' and the 'e'.
As regards Mr McGinn's 'a' observation concerning potential for a wider range of variation in Mr Shore's signature than was provided to him in specimens, I asked the following question of Mr McGinn during the course of his evidence: see ts 54 ‑ 55.
MARTIN J: In terms of that hypothesis, which is that there is a wider range than what you've been provided with in the specimens, isn't that present in most comparison exercises that you need to make if you are only provided with a limited number of specimens?
MR McGINN: Yes. That ‑ that's quite true. It comes down to the ‑ the fluency and the complexity of the signature itself, and this is one issue that ‑ that became quite apparent during the examination was that this signature is, whilst moderately complex, it's not an overly complex signature and, therefore, when you are seeing a moderately complex signature where there is, even with the samples that we've got, a range of variation that is present that is showing that things do distort in different ways, that's very different to a nice tight signature, and a very complex signature, where the distortion would be much less …
MARTIN J: So my question really is this: given all that, how many original or copy specimen signatures would you need before you would say that proposition 3(a) is not applicable in the comparison exercise? …
MR McGINN: I think - not what I think ‑ my view is that - that the moderate complexity of this signature is going to be a barrier in almost all cases to that actually occurring, and that - that creates certain issues.
During the course of re‑examination counsel for the plaintiff asked the following questions (ts 56):
MS HOLYOAK-ROBERTS: So you were drawn to some dissimilarities …?
MR McGINN: …Yes.
MS HOLYOAK-ROBERTS: … In the M, the S, the H and the O and the P. Are some of those dissimilarities what you would normally expect to see in variations of signatures? …
MR McGINN: I have identified those as dissimilarities.
MS HOLYOAK-ROBERTS: Yes? …
MR McGINN: And as compared to a variation, and I've identified that on page 8, that ‑ that they are very different. They are differences in the way that those aspects of the signature are created, based on the specimen material that I've been provided.
MS HOLYOAK-ROBERTS: And that goes to why your opinion is inconclusive. Is that right?
MR McGINN: Look, it does. It's certainly - it's certainly not possible, and it would never be possible to say that this is a naturally executed signature of the specimen writer. That ‑ that one is effectively off the table. It comes down to whether the writer would be capable of doing it, and the answer to that is yes, that the writer would be capable of completing that signature on the will based on what they're capable of doing in their naturally executed signature …
Five conclusions emerge for me from Mr McGinn's evidence under his report and then from his questioning at trial, namely:
a.Mr McGinn says there is a considerable range of variation in the specimen signatures of Mark which he examined;
b.Mr McGinn's par 3(a) observation seen above is made on the basis that the questioned signature of Mark on the 4 October document would fall outside the range of the specimen signatures that he examined;
c.The questioned signature does not present as in effect Mark's natural signature. It may be that Mark was capable of generating what is seen, but what is seen is certainly not his natural signature.
d.Albeit Mr McGinn's opinion is ultimately an inconclusive opinion, his par 3(b) alternative is left undiminished as a real potentiality here, on all the evidence;
e.At minimum, Mr McGinn's expert opinion does not assist me to reach a conclusion on his evidence that the questioned signature on the 4 October document on the balance of probabilities is that of the late Mark Shore.
f.If anything, Mr McGinn's handwriting report and evidence at trial raises doubts for me on these issues, rather than clearing them up.

Other non‑expert evidence at trial

The trial proceeded upon a directed basis of affidavits submitted, with deponent witnesses making themselves available for cross‑examination. To that end there were two affidavits from Jennifer Addison, the first sworn 31 March 2016 (exhibit K) and her second affidavit (of scripts) sworn 12 February 2016 (exhibit L).
Mr McGinn's expert report was tendered and became exhibit M.
Mrs McPherson's affidavit of 20 April 2016 became exhibit N. Mrs McPherson's husband, William (Bill) Brighton McPherson swore an affidavit of 20 April 2016. It became exhibit P. There was a notice to admit facts submitted as between the parties, it became exhibit B. The deed of settlement document creating the Shore Family Trust of 1 September 1986 became exhibit C. A deed of appointment of a new trustee was exhibit D. That deed is dated 28 April 2009. A deed of appointment of a new guardian, became exhibit E. This deed is executed 28 April 2009. A deed of appointment of a new trustee of 26 March 2014 (appointing Mark Shore as trustee) became exhibit F. A deed of appointment of new trustee appointing Jennifer as the replacement trustee in the wake of Mark's death was executed on 20 November 2014, it became exhibit G at the trial.
Exhibit H at the trial is an updated statement of assets and liabilities in respect of Mark's estate showing that the predominate asset (No 4), is his AMP life policy, estimated as carrying a payout amount of $638,140.79. This comprises the bulk of the value of Mark's estate, in the amount of $712,140.79.
The liabilities of Mark's estate are listed as:
1.Pepper Finance loan/account 608166 $411,499.34.
2.Pepper Finance loan account 608167 estimated at $56,702.51.
3.Loan from R M and J D Addison $28,299.57.
4.Loan from V M McPherson $5,350.
The aggregate total of Mark's debts amounts to $501,851.42.
A note to the second of the above debts says that the $56,702.51 figure is derived by subtracting the payout figure for the loan as at 16 November 2015 ($400,813.88), less an amount received by Pepper Finance (less sales costs and rates) from Pepper Finance's sale as a mortgagee in possession for what I infer is the amount of $344,110.82. That I take it to be a reference to realised proceeds of sale of the 3 Bushby Close, Mount Tarcoola property by Pepper Finance as mortgagee, upon a default in repayment of that loan following Mark's death.

Events of October/November 2014

Mrs Verna McPherson's affidavit (exhibit N) commencing at [55] details a lead up to the events of October and November 2014. (I note the paragraphs have been incorrectly numbered at pages 9 ‑ 10 of this affidavit). She says at pages 9 ‑ 10:
59.The 15th September 2014, is the date I started to draft a Will for Mark based on our earlier conversations. I used copies of a previous will of mine, and my daughters, of which I hold a copy of for safekeeping, to create the format of the Will.
60.On 2 October 2014, I had a telephone conversation with Mark. He told me he and the family would be coming to Perth that day and would bring the children down for the school holidays for the weekend of 4 October and 5.
…
62.I then said to him that he would need to continue to be vigilant with his mortgage repayments. I said to him: 'I'll have something for you to have a look at in a way of a will'. I said this because of our previous conversations in August and because I had completed the Will at this point to what I believe would be to his satisfaction.
(Reference to August conversations is a reference to [60] to [67] on page 9 of Mrs McPherson's affidavit, which it is unnecessary to relate. Those conversations I assess as inconclusive in any event.)
63.On 2 October 2014 Mark, Sudakan and family came to stay at my home in Hillarys.
64.On Saturday night, 4 October 2014, Mark, Sudakan, Sudakan's children, my husband Bill and I had dinner at my home after spending the day out together.
65.We had dinner sometime about 6:30 or 7.00 pm.
66.Dinner was over very quickly at least by 7.30 pm. Bill did the dishes. Mark went outside to sit in the patio area to have a few beers and a few cigarettes.
67.Bill went to bed early, at about 8.30 to 9.00 pm because he leaves for work at 4.30 am.
68.I sat outside with Mark. We chatted about various things. Sudakan wasn't outside with us.
The paragraphs which follow between [69] to [74] are the essential evidence which Mrs McPherson advances in chief, as to what happened between herself and Mark. Her evidence is quite brief. She relates:
69.Sometime around 9.30 pm I asked Mark if he wanted to read his Will.
70.I went to my bedroom and got the Will and gave it to Mark to read.
71.I said words to the effect of 'This is what I put together for you. Read through this, see what you think, if you're happy with it we can just sign it off'.
72.I made the point that Mark should still get a proper will drafted by a lawyer. I remember he said words to the effect of: 'yes but that'll wait until I can afford it'.
73.Mark read through the Will. He said 'yeah, that's ok, Ma'. I saw him sign the Will.
74.I signed the Will as a witness. I affirm that a true copy of the Will is annexed to my Oath, which is attached to this Affidavit as 'VMM1'.
At [75] Mrs McPherson offers some evidence of intention which as regards Mark is wholly inadmissible but was not objected to. In the end however, I afford little weight, given its nature. It is this:
75.Neither Mark nor I thought about the necessity for the Will to be signed by Mark on both pages of the Will, or that it had to be witnessed by two witnesses together with Mark at the time of signing.
Mrs McPherson is correct in relation to a need for two witnesses, rather than just one (herself) as things transpired. However, it is not, as a matter of law, now necessary for Mark to sign both pages of the 4 October 2014 document, in order for it to constitute a valid will ‑ to accord with the formalities of the Wills Act. Section 8 of the Wills Act does not say that, or require it.
As to what happened to the document after the signatures event as described by Mrs McPherson, she says this:
76.After the conversation I took the Will and put it in the bottom drawer of my dressing table where I have copies of my other family member's Wills.
77.I did not tell anyone about the existence of the Will after Mark signed it.
78.The following day Mark, Sudakan and the children returned to Geraldton.
At the trial Mrs McPherson was asked about the events of 4 October 2014 by further questions, in chief: see ts 58 ‑ 60. She was also asked about these events in cross‑examination. It was put to her in explicit terms that she had written out the 4 October document and had had no input from Mark: see ts 72 - 73. As to her pestering him about getting a will signed, she accepted she had pestered him on this issue: see cross‑examination ts 73. At that point she talked about what she had 'drafted up'. She also said at ts 74 under cross‑examination:
He ‑ we decided ‑ how do I put that? We drafted up what he wanted. It was an interim type document for when he had the finances to get a legal document. It was basically to say this is what I want and that's it.
Mrs McPherson said under questioning at ts 75 that it was up to Mark whether Jennifer was informed about her appointment as his executor. She said:
If he wanted to relay that to my daughter, his wife, that was his ‑ up to him to do so because I only worked for him.
She added:
That was his business, yes (ts 75).
She was also asked about residual debt left on the Girrawheen (Butterick Place) property, to which she gave her first response (ts 75):
It was not my concern because it's not my mortgage.
A further question was asked:
Well, one of them is on the Butterick Place property?
(Referring to one of the secured mortgages held by Pepper Finance as mortgagee).
Now her response was:
… well, that was a concern, yes, but that would be ‑ that was still the debt was not mine on that property …
Mrs McPherson said further (at ts 76) as to the 4 October document which she wrote out that it was:
MRS McPHERSON: … an unspoken rule that house would be put ‑ once he had his finances in order, after 12 months he would get a loan through the Commonwealth Bank, and then the mortgage on that Butterick Place home would be released. That's where we were at when he died.
MR ARNDT: And he knew that until that was done, there was a serious risk of you losing your investment in that property if Mark died in the meantime? …
MRS McPHERSON: We all did, yes.

Mrs McPherson was asked about events immediately following Mark's death on 24 October 2014 (ts 76):
MR ARNDT: And you knew once Mark had died that it's now you can't get a loan from the Commonwealth Bank anymore. The only option left is to get his superannuation and his life insurance? ...
MRS McPHERSON: I'm sorry. When he died I wasn't even in that frame of mind.
MR ARNDT: Yes. But shortly after he died? …
MRS McPHERSON: Maybe at some stage, yes.
MR ARNDT: Certainly well before 6 November when you had the meeting with Mr Tham, you realised that was a risk?
MRS McPHERSON: It was more the fact that once Mark died, and we went up to Geraldton on that weekend that he died on a Friday, and that ‑ on Saturday, Sunday I think, the Monday after he died, I went to get the box of papers to show Sudakan where and how to get things instigated to start the process of getting his life insurance so she could then carry on financially.
Mrs McPherson's affidavit chronologically related the unfortunate disputation arising within the family over Mark's funeral arrangements and where he would be buried. Eventually, this resulted in the need for Jennifer to consult a lawyer, Mr Henry Tham at his Osborne Park offices. That was on Thursday, 6 November 2014. Mrs McPherson's evidence‑in‑chief about this through her affidavit exhibit N was very brief. It began at [87] in these terms:
87.On 6 November 2014, I met with Jennifer, Bill, my son Jeffrey, and Mr Tham, a lawyer acting for Jennifer, at his office at Osborne Park.
88.Henry Tham asked if Mark had a Will. Everyone said 'no' or 'I don't know'.
89.I spoke up and said that I had drafted up a Will and it was signed by Mark and I.
90.Henry asked if he could see the Will.
91.The next day was Friday 7 November 2014. I attended Mark's funeral.
92.I delivered the Will to Mr Tham's office on Monday morning of 10^th November, 2014.
Mrs McPherson's evidence about this meeting and what was said presents to me as rather curious ‑ particularly since the copy of the 4 October document which was asked for by Mr Tham was only delivered to him by her on Monday 10 November, after Mark's funeral on Friday 7 November 2014.
Jennifer's evidence under her affidavit exhibit K about the same meeting at Mr Tham's office and events leading up to it, is not entirely consistent with that of her mother. Jennifer related at [38]:
On 6 November 2016 [sic, 2014 I assume as the intended date] I received a letter from the first defendant's lawyer in which he sought we cancel the funeral so that [Sudakan] could arrange for the funeral to be held in Geraldton … That letter was dated 5 November 2016. It is reproduced at Annexure C to my Oath. It was faxed to my work, and I received it by email because someone at my office forwarded to it to me.
Jennifer is engaged and based in Geraldton as owner/manager of the Bank of Queensland, Geraldton Branch. The letter in question was from Sudakan's lawyer Mr Ryan Arndt, a barrister and solicitor of Forrest Street Geraldton. Of some significance were these words in his letter to Jennifer on behalf of Sudakan:
I am instructed that since Mr Shore's death on 24 October 2014 you and other members of your family have engaged in conduct which has been intimidating towards my client, including:
•Demanding that she sign an authority to authorise you to obtain confidential information regarding bank accounts jointly held by and loans jointly owed by your late brother and my client;
•Directing her that she is not to drive any vehicles owned by herself and the deceased, and wrongfully informing her that she is not covered by the insurance on those vehicles;
•Demanding that she consent to the late Mr Shore's funeral being held in Perth.
I am also informed that you have, without my client's authorisation, and known to you to be contrary to her wishes, organised a funeral for the late Mr Shore for this Friday in Perth.
It is not known to me at this stage how you have organised the funeral. My instructions are that to the best of my client's knowledge her late husband did not leave any will. Unless you are the nominated executor of a Will, or unless there is a direction in a will as to the funeral arrangements, it appears that you have usurped Mrs Shore's authority with respect to the funeral arrangements.
If you have authority derived from such an instrument, please provide me with a copy so that I may advise my client accordingly.
If you do not have such authority, I request on behalf of my client that you immediately cancel any arrangements you have made for this funeral, and allow my client to make the necessary arrangements for a funeral in Geraldton.
Please reply by close of business today if possible.
If my client is forced to take action to prevent the funeral proceeding, my client will be seeking an order that you pay the costs of the application on an indemnity basis, and all costs and expenses wasted as a result of the unauthorised conduct with respect to the funeral.
Mr Arndt's letter of 5 November 2014 only reached Jennifer via email ‑ as she was in Perth (she was staying with her children in the southern Perth suburb of Murdoch, not with her mother in the northern Perth suburb, Hillarys). The passages I have identified from Mr Arndt's letter can be seen to draw explicit attention to the significance of the existence of a will made by Mark.
Sudakan's demand to halt a planned funeral service and burial for Mark in Perth (Pinnaroo), to allow Mark to be buried instead at Geraldton ‑ led to Jennifer and her family going to consult Mr Henry Tham, at Osborne Park on the very day this letter came to Jennifer's attention.
Jennifer's evidence was to the effect that prior to attending that meeting with Mr Tham at Osborne Park , she had not been told by her mother about an existence of the 4 October document. I also find that curious, given that Mark had died on 24 October 2014 in wholly tragic circumstances and Jennifer and her mother had both been together in Geraldton with Sudakan in the immediate aftermath of that event. Hence, there was every opportunity for Mrs McPherson beforehand to tell her daughter about a 'will' of Mark, if that was in fact such an instrument ‑ at a point well prior to 6 November 2014. (See Jennifer's evidence about herself and her mother being together with Sudakan and her family in Geraldton at [12] and [13] of exhibit K).
Jennifer related this version of the events at Mr Tham's offices at [41] to [45] of her affidavit:
41.I attended a meeting with my then lawyer, Mr Tham on 6 November 2014 at his office in Osborne Park to discuss the [sic] Sudakan's letter [referring to Annexure C]. Present at that meeting was my mother, Verna McPherson, by brother Jeffery [sic] Shore and my step‑father Bill McPherson.
42.During the course of that meeting, Mr Tham asked if Mark had left a Will.
43.My mother said that she had some paperwork that she and Mark had completed.
44.Mr Tham asked for my mother to provide him with a copy of the document so he could examine it.
45.That was the first occasion I heard about the Will.
Jennifer's affidavit would rather suggest she only learned about the 4 October 2014 document after Mr Tham has asked a question about a will of Mark and her mother had then said she had some 'paperwork' that she and Mark had completed.
In the cross‑examination of Mrs McPherson it was put that she had learned of Mr Arndt's written communication, in effect the threatened injunction, on the part of Sudakan through her lawyer by the letter 'before' the meeting with Mr Tham, (at ts 77). Mrs McPherson said Jennifer had rung her. Jennifer had been staying with her children in Murdoch (see ts 78). Mrs McPherson now learned that Jennifer had arranged an urgent meeting with Mr Tham.
Mrs McPherson was asked about why she had not taken the 4 October document to the meeting with Mr Tham, given that it was always in her custody at her house, on her version of events. This was put at ts 78:
MR ARNDT: And it didn't occur to you to take the will to that meeting? ...
MRS McPHERSON: No, because we were organising a funeral. We didn't want the funeral delayed any longer.
MR ARNDT: Mrs McPherson you didn't take the will to that meeting because that will was not in existence at the time of that meeting? ...
MRS McPHERSON: That is incorrect.
Mrs McPherson was asked in cross‑examination about reading the letter from Mr Arndt, which had been in the possession of her daughter. Mrs McPherson said that she thought she would have read it, once all the family members got to the lawyer's office, 'when we were sitting in the waiting room', being a few minutes before the meeting.
Jennifer's term 'paperwork', in reference to the 4 October 2014 document, as mentioned by her mother at the meeting with Mr Tham, became the subject of questioning to Mrs McPherson in her cross‑examination. This was asked:
MR ARNDT: And did you say to Mr Tham 'I have some paperwork'? …
MRS McPHERSON: Yes, I said, 'I have something like a will that we had ‑ that had been done'. Like, I called it a draft. Now, this did not …
MR ARNDT: So your exact words were 'I've got something like a will that I have done. It's a draft'? …
MRS McPHERSON: Something to that effect, from what I can recall.
MR ARNDT: Okay so you didn't just say 'some paperwork?'
MRS McPHERSON: I don't think so, no.
After some further questioning of Mrs McPherson this exchange followed at ts 79 - 80:
MRS McPHERSON: We had - after discussions with Mr Tham and yourself, it was then agreed that the funeral would be the following day, 7 November. Then Mr Tham asked about if anyone had a will. They all said no, and I said to him, well, I have this paperwork at home or a draft will. I can't recall the exact words.
MR ARNDT: So you're telling us?
MRS McPHERSON: And he said he would like to see it, and I said I will drop it in, which was on the Monday after the funeral.
In her re‑examination at ts 86 ‑ 87, Mrs McPherson was asked again about the lawyer's meeting, in terms:
MS HOLYOAK-ROBERTS: And you said he asked about a will?
MRS McPHERSON: Yes.
MS HOLYOAK-ROBERTS: You said you had something like a will …?
MRS McPHERSON: Yes.
MS HOLYOAK-ROBERTS: That had been done? …
MRS McPHERSON: Yes.
MS HOLYOAK-ROBERTS: And you made reference to the term, 'it's a draft'? …
MRS McPHERSON: Yes.
MS HOLYOAK-ROBERTS: What did you mean by that? (The question was not objected to).
MRS McPHERSON: Well, that was my terminology, my explanation that basically it was something interim to show to Mark how a will can be put together with your ‑ with his requests. …
At ts 87, continuing her re‑examination, this exchange ensued with Mrs McPherson:
MS HOLYOAK-ROBERTS: The document of 4 October 2014, you say, was signed by Mark? …
MRS McPHERSON: Yes.
MS HOLYOAK-ROBERTS: And the reference to ‑ your reference to 'it's a draft' was something you said, not he said? …
MRS McPHERSON: No, it was what I said.
MS HOLYOAK-ROBERTS: What you said, and it was only something you had said to Mr Tham? …
MRS McPHERSON: Yes.
MS HOLYOAK-ROBERTS: And not something that you had said to Mark?
MRS McPHERSON: Well, it was more, ‑ with Mark it was drafting up a will of sorts.
MS HOLYOAK-ROBERTS: Yes? …
MRS McPHERSON: With Mr Tham I said it was a draft or, you know, something that Mark had signed.
MS HOLYOAK-ROBERTS: But that was something you had said, not Mark?
MRS McPHERSON: When I said it to Mr Tham Mark wasn't there.
As I assess all the evidence under cross‑examination and re‑examination of Mrs McPherson concerning references to this 4 October document as a draft, or a 'will of sorts', and I then compare that to what was initially said in Mrs McPherson's affidavit under [87] - [90] ‑ there is a stark difference to the impression created by those brief paragraphs. Jennifer's reference to her mother indicating that she had some 'paperwork' that she and Mark had completed ‑ presents to me as being a more reliable, likely and accurate version of that meeting. Moreover, I assess it as more likely Jennifer would have been a lot earlier apprised as to the existence of this document by Verna, if her mother had been under an impression that it represented a final expression of testamentary intention by Mark. But it took until 6 November for Verna to tell Jennifer of its existence and I find that curious to say the least.
The events at Mr Tham's offices on 6 November 2014 intensify the doubts in my mind as to whether this document which Mrs McPherson had prepared was anything more than just a step along a path to Mark getting a will prepared at some future point but also as something that could wait to be finalised until he could afford it. As such, the document was not really a final expression by Mark of testamentary intentions 'without anything more' - even if it bore his genuine signature.
I also note Jennifer's cross‑examination concerning the meeting with her family in the car park when they all arrived at the Osborne Park location for their meeting at Mr Henry Tham's offices and her evidence that there had been no discussion to that point with her mother about the existence of any will by Mark: see ts 36 ‑ 37. This was asked:
MR ARNDT: And when Mr Tham asked about the will, that's when your mother said that Mark had completed some ‑ sorry that she had some paperwork that Mark had completed, that she and Mark had completed? …
JENNIFER ADDISON: That's correct.
MR ARNDT: She didn't use the word 'will' herself? …
JENNIFER ADDISON: No. She said 'paperwork'.
MR ARNDT: And that's when Mr Tham then asked to provide a copy of it …
JENNIFER ADDISON: That's right.
MR ARNDT: Okay. Did Mr Tham ask her if it was a will? …
JENNIFER ADDISON: He did.
MR ARNDT: And did she say yes? …
JENNIFER ADDISON: Well, she said what it was, that it was paperwork, and it was Mr Tham that suggested that it could be deemed as an informal will.
MR ARNDT: Yes, but you hadn't seen the document at this point in time? …
JENNIFER ADDISON: No. I hadn't.
As I have indicated, Jennifer's recollection of the word 'paperwork' as used by Verna at this meeting, is out of alignment with her mother's evidence‑in‑chief at [89] about saying she (Verna) had 'drafted up a Will and it was signed by Mark and I'.
It is accepted that there was a delay by Mr Tham in providing a copy of the 4 October document to Mr Arndt after Mrs McPherson delivered it to him on the following Monday, 10 November 2014. There is nothing sinister to be drawn from that delay, as is accepted all round. One of the facts agreed to under exhibit B accepts that the delay in providing a copy of the same to Sudakan (via Mr Arndt) was occasioned by Mr Tham's office (see admitted fact 1, exhibit B, 27 May 2016).
The essential facts now canvassed above, fall some distance short of establishing to my satisfaction that the 4 October document meets the requirements of pt X of the Wills Act. Beyond my lingering concerns over the authenticity of the signature upon that document as being that of Mark, what also presents from the evidence concerning the events of 6 November 2014 at Mr Tham's offices, in my view, also raises considerable doubts over whether in fact the 4 October document as prepared, even if it carried Mark's genuine signature, was a final expression by him of his testamentary intention 'without anything more'.

Final determinations

As indicated Mr McGinn, the handwriting expert, has expressed an inconclusive opinion concerning the questioned signature of Mark on the 4 October document. At best then the position concerning opinion evidence about that signature, is inconclusive. Essentially, the signature authenticity issue in the trial distils to whether or not I accept Mrs Verna McPherson's evidence as to what occurred on the evening of Saturday, 4 October 2014 at or around 9.30 pm. That is when she says she witnessed Mark sign the 4 October document and she then signed it herself as the sole witness to his signature.
At the end, I hold the deepest reservations about accepting Mrs McPherson's uncorroborated evidence about those matters. I regret that I cannot accept her evidence in unqualified terms. That is essentially for the following reasons:
A.As I examine the 4 October document, I, like Mr McGinn, am left concerned about whether the observed signature is in accord with the specimen signatures of Mark which have been provided. I am of that view especially in relation to the 'M' and the 'h'. That leaves me in a state of some concern. That concern has not been alleviated by Mr McGinn's expert opinion handwriting evidence. If anything my concerns are only reinforced as to the authenticity of the signature appearing on the 4 October document.
B.Bearing in mind the first registered mortgage to Pepper Finance which Mark had caused to be taken against the security of the Girrawheen property to secure his personal borrowings, Mrs McPherson on my assessment, did have a financial incentive to facilitate the outcome whereby that land and property (which she accepted she had viewed as an investment for her retirement), would be substantively cleared of its encumbrance to Pepper Finance. The 4 October document would be a step to achieve that end, if it is to be accepted as Mark's informal will, or if it is accepted as an express direction by him to accord with s 205(1)(b)(iii) of the Life Insurance Act (Cth). In short, Mrs McPherson holds a financial motive to facilitate that outcome.
C.Mrs McPherson's evidence was that she had (to use her term) 'pestered' Mark in respect of his failure to make a will. I am concerned by the fact that after 4 October 2014, even if events occurred as Mrs McPherson says they did, that nothing was ever said by Mark to Jennifer about what he had done and his appointment of her as his executrix and personal representative. As seen, although Mark died on 24 October 2014, Jennifer did not learn of the existence of this 4 October document and thereby of her 'appointment', until the 6 November meeting at Mr Henry Tham's offices in Osborne Park, the day before Mark's funeral and burial service. Nor is there evidence as to Mark saying anything to his wife Sudakan, about what he had supposedly done on 4 October 2014. Quite to the contrary, the evidence suggests that Sudakan was not aware of any will by her late husband. I also find that position strange. Conversely, had there been some evidence about Mark communicating to his sister, her appointment as his personal representative, then that would have been significant corroborating evidence to the plaintiff's case. But there is no such supporting evidence in this trial.
D.I conclude that (apart from motive and means) Mrs McPherson had more than enough opportunities over the years and then after Easter 2014, or indeed after visiting Geraldton in the immediate aftermath of Mark's tragic death on 24 October 2014 ‑ to obtain access to a document that carried Mark's signature ‑ in order to see and copy it. I render that observation as the suggestion was put in closing submissions at trial that Mrs McPherson returned all documents she had once held in her possession containing Mark's signature to him, at or around Easter 2014, when she had visited Mark and Sudakan's home in Geraldton. However, I am not persuaded that such evidence is convincing enough as regards an elimination of all the opportunities for Verna to obtain a document with Mark's signature that could be copied.
E.There is the inconsistent evidence which I have earlier identified during the course of the chronology of events for October and November 2014 ‑ which leaves me with some concern as to accepting Mrs McPherson's evidence.
G.In particular the meeting with Mr Henry Tham at his Osborne Park offices of 6 November 2014, seems to me to be the subject of inconsistent versions of evidence as between Jennifer and her mother, as regards the reference to a 'draft' will, which is not a term that had previously been used by Mrs McPherson in her affidavit. Her use of that term only first emerged in her evidence at the trial.

Conclusion

At the end of the day the plaintiff accepts that she carries the onus of proof on the civil standard to persuade me that the 4 October document can be accepted to accord with the requirements of pt X of the Wills Act, as an expression of testamentary intention by Mark. At the end of all the evidence in this trial I am left unpersuaded.
In particular, I am not persuaded that the 4 October document actually does bear Mark Shore's own signature. Moreover, even if Mark's signature authenticity threshold had been shown, nevertheless, upon the basis of other evidence concerning this document, with it being described by Mrs McPherson as a 'draft' and having not been mentioned until some days after Mark's death to her daughter at the meeting at Mr Tham's offices on 6 November 2014, this document can be viewed as only something of a step, or a preliminary work in progress by Mark towards making a proper will. Even if Mark did sign the document ‑ rather than being a final expression of his testamentary intention to meet the requirements of s 32 of the Wills Act, it does not meet the 'without anything more' standard for proving a valid informal will under pt X.
Accordingly the plaintiff's case fails. I will provide these reasons to the parties for them to give due consideration to their respective positions. They should provide my associate, after conferral, with an agreed minute of proposed orders giving effect to those reasons. In the event that orders cannot be agreed including as to costs, then they should liaise with my associate to obtain an appointment, at which time any residual matters in dispute concerning final disposition orders for this action can be resolved.