Auksorius v Public Trustee

[2024] TASSC 11

[2024] TASSC 11

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Auksorius v Public Trustee [2024] TASSC 11
PARTIES:	AUKSORIUS, John Ronald and
HOWELL, Maryanne
v
THE PUBLIC TRUSTEE as administrator of the estate of
Adrian Lacroix (deceased)
DALE, Olivia
THE TRUSTEES OF THE HOBART SALVATION
CENTRE TRUST
FILE NO:	1814/2017
DELIVERED ON:	19 March 2024
DELIVERED AT:	Hobart
HEARING DATE:	14 March 2023
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Succession – Making of a will – Testamentary instruments – Testamentary character – Particular documents –

Forged will.

Aust Dig Succession [1014]

Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74
Cowen v Truefitt Ltd [1899] 2 Ch 309
Hopwood v Cuthbertson [2001] TASSC 64, 10 Tas R 186
Morrell v Fisher (1849) 4 Exch 591
Public Trustee v Butters (unreported, B24/1994, Zeeman J)
Selstam v McGuinness [2000] NSWCA 29, 49 NSWLR 262

ZAB v ZWM [2021] TASSC 64

REPRESENTATION:

Counsel:

Counterclaimants:	D Deayton
Other parties:	No appearance

Solicitors:

Counterclaimants:	Murdoch Clarke
Public Trustee:	Ogilvie Jennings

Judgment Number:	[2024] TASSC 11
Number of paragraphs:	57

Serial No 11/2024 File No 1814/2017

JOHN RONALD AUKSORIUS and MARYANNE HOWELL v THE PUBLIC

TRUSTEE as administrator of the estate of Adrian Lacroix (deceased), OLIVIA DALE and THE TRUSTEES OF THE HOBART SALVATION CENTRE TRUST

REASONS FOR JUDGMENT BLOW CJ
19 March 2024

1             This litigation concerns the estate of the late Paul Peter Auksorius ("the testator"). He died on 10 January 2017, aged 90 years. Contentious probate proceedings were instituted in relation to his estate. The details of those proceedings appear below. On 14 March 2023 I conducted an ex parte hearing of the counterclaim in the proceedings. At the conclusion of that hearing I made a finding that a document dated 5 January 2017 ("the 2017 document") which purported to be a will of the testator was a forgery, and made an order pronouncing for the force and validity of a will of the testator dated 13 December 2016 ("the 2016 will") as well as a number of consequential orders. I said that I would publish my reasons at a later date. These are my reasons for the orders that I made on that day. I regret that a number of matters have prevented me from finalising these reasons until now.

2             The 2016 will was prepared and executed in the office of Murdoch Clarke, a Hobart law firm. The counterclaimants, John Auksorius and Maryanne Howell, were named as executors and trustees of that will. They are two of the testator's five surviving children. By that will he left his estate to his trustees upon trust for his surviving children in equal shares, with provision for each child's share to go to grandchildren if the child did not survive him and attain the age of 21 years.

3             The testator had had six children. One of them, Christine Anita Dale, predeceased him. Mrs Dale was married to a police officer named Steven Dale. He was a handwriting expert. He and Mrs Dale had a son who at all material times was named Adrian Lacroix. After Mr Dale retired from Tasmania Police, he and Mr Lacroix carried on a business together as private forensic document examiners.

4             The 2017 document, which I held to be a forgery, named Adrian Lacroix as the testator's executor. Amongst other gifts, it included a gift to Mr Lacroix of assets in the Seychelles, including a parcel of land.

5   The sequence of events leading up to the trial of the counterclaim can be summarised as

follows:

• On 6 December 2016 the testator and Mr Lacroix went to the office of Murdoch Clarke where they saw one of the partners, Mr Robert Badenach, and the testator gave instructions for the 2016 will.

• On 13 December 2016 the testator executed that will. The attesting witnesses were Mr Badenach and his personal assistant, Ms Cassar.

• On 10 January 2017 the testator died.

• On 18 January 2017 the testator's funeral was held. At the graveside, a man from the funeral company asked to speak to one of the executors. Maryanne Howell identified herself as an executor and spoke to him. Mr Lacroix was within earshot. He did not say anything about Mrs Howell's assertion that she was one of the executors.

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• On 21 January 2017 Mr Lacroix sent John Auksorius a text message referring to "Poppy's Last Will & Testament dated 5th January 2017".

• On 23 January 2017 the five living children of the testator filed a caveat in the Probate Registry of this Court in relation to the testator's estate.

• On 22 March 2017 Mr Lacroix's solicitors filed a notice of warning in relation to that caveat.

• On 20 June 2017 Mr Lacroix commenced action 1814/2017 in this Court, seeking to propound the 2017 document. The executors named in the 2016 will filed a defence and counterclaim, seeking to propound that will.

• On 2 April 2020 the counterclaimants filed an amended defence and counterclaim, joining Olivia Dale and the Trustees of the Hobart Salvation Centre Trust as defendants to the counterclaim. They were joined because the 2017 document included legacies in their favour.

• On 6 March 2021 Mr Lacroix died.

• On 25 January 2022 the Public Trustee was granted letters of administration of his estate with his will annexed.

• During 2022 a compromise was reached between all relevant parties, including the counterclaimants and the Public Trustee. As a result, Holt AsJ made consent orders on 16 February 2023 dismissing the claim commenced by Mr Lacroix in respect of the 2017 document, and requiring the counterclaim to be listed for a trial by affidavit.

• That trial proceeded ex parte since neither the Public Trustee, Olivia Dale or the Trustees of the Hobart Salvation Centre Trust took any part in the proceeding. All the evidence was given by affidavit as ordered. Some of the evidence that I received was hearsay.

6 None of the hearsay evidence was objected to since the counterclaim was not defended. Section 59(1) of the Evidence Act 2001 provides that hearsay evidence is "not admissible" to prove the truth of the facts asserted. However there is a substantial body of authority establishing that "not admissible" means "not admissible over objection", with the result that hearsay evidence is not excluded when there has been no objection: Selstam v McGuinness [2000] NSWCA 29, 49 NSWLR 262 at [149]; Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 at [25]-[26]; ZAB v ZWM [2021] TASSC 64 at [15]. I have no reason to doubt the truth of any of the hearsay evidence relied upon by me in these reasons.

The assets in the Seychelles

7             The testator's second wife, Danielle, came from the Seychelles. She owned three properties there, identified as Land Parcels S2616, S3662 and S3664. She died in 2008 and the properties were inherited by the testator. During her lifetime, the testator and Danielle had attempted to get tenants to vacate a house on one of those properties, without success.

8             After inheriting those properties, the testator tried to get various family members to travel to the Seychelles with a view to obtaining vacant possession of the house in question, initially without success. After others had declined to go there, the testator asked Mr Lacroix if he would assist, and Mr Lacroix agreed and went there.

9            On 17 May 2010 the testator signed three powers of attorney, each of which authorised Mr Lacroix to act as his attorney in relation to one of the Seychelles properties.

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10           Third parties had commenced residing on one of those properties (S3664), had modified the dwelling on that property, and had made an application for part of the property to be registered in their names on the basis that they had acquired title to it by prescription. On 11 March 2013 in the Supreme Court of the Seychelles, Renaud J gave judgment against the testator. He declined to order that the occupants vacate their house, and ordered that the house and its "cartilage" (sic) be excised from the testator's land and registered in the name of the occupants as property they had acquired by prescription.

11           At some stage, apparently without the knowledge of the testator, Mr Lacroix executed transfers of two of the Seychelles properties, S2616 and S3662, as the testator's attorney. He transferred each of them to his wife, Chantelle Lacroix. The transfers were dated 13 March 2013 but, because of evidence referred to below, I infer that they were signed some years later.

12           At some stage Mr Lacroix instituted an appeal in the name of the testator against the judgment of Renaud J. A settlement with the respondents to that appeal was negotiated, and consent orders were made by two judges of the Seychelles Court of Appeal, Domah and Twomey JJA, on 14 April 2015. The two respondents were granted a "right of use and habitation of the dwelling house and the present structures standing on the Land parcel S3664 and immediate curtilage … for their respective lives". It was also ordered that they were to have a right of way over the land from the public road to the premises.

13          Mr Lacroix returned from the Seychelles and informed the testator that all of the Seychelles properties had been lost to third parties as a result of the court proceedings there.

14          In early 2016 the testator's son John helped him to complete a form for Centrelink. The form required the testator to list all his assets. He did not list any property in the Seychelles.

15           Proceedings under the Family Law Act 1975 (Cth) between Mr Lacroix and his former wife Chantelle Lacroix went to trial in the Family Court of Australia during 2016. On 7 October 2016 Rees J gave judgment and made a series of orders, one of which required Chantelle Lacroix to "do all things required to sell the land at Anse Aux Pins, Mahé, Seychelles, to pay all selling costs, and to pay 30 per cent of the net proceeds of sale to the father".

16           On Christmas Day in 2016 the testator's son Barry hosted a Christmas lunch that was attended by a number of family members including Olivia Dale, the sister of Mr Lacroix. She told Barry and Robert Auksorius that Chantelle Lacroix was going to be receiving two parcels of property in the Seychelles that had belonged to the testator as part of a divorce settlement. Shortly after Christmas Day Robert Auksorius spoke to the testator about what Olivia Dale had said. The testator replied with words to the effect of, "Don't be stupid Robert. No way that Adrian has got anything. There is nothing to get." John Auksorius also spoke to the testator at about that time about what had happened to the Seychelles properties. The testator told him that the land in the Seychelles had gone a long time ago, that he had lost a court hearing, and that his tenants had taken the property away from him.

17           Following the death of the testator, as a result of enquiries by members of his family, officers of Tasmania Police provided family members with copies of the transfers by which two properties in the Seychelles had been transferred to Chantelle Lacroix by Mr Lacroix as the testator's attorney. The testator's son Peter took steps to have "restriction orders" made in respect of the two parcels of land held by Chantelle Lacroix in order to prevent their further transfer. Mr Lacroix responded by instituting contravention proceedings against Peter Auksorius in the Federal Circuit Court of Australia (as it then was), alleging that he had contravened the orders of Rees J by registering the restriction orders.

18           Peter Auksorius travelled to the Seychelles in 2020 to try to discover what had happened in relation to his father's assets in that country. On making enquiries, he discovered that Mr Lacroix had

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obtained a grant of probate in the Seychelles in respect of a document that purported to be yet another will of the testator. The document was dated 13 March 2013. It purported to have effect "solely and exclusively for and within the jurisdiction of the Republic of the Seychelles". It provided for Mr Lacroix to be appointed as the testator's executor. It contained only one purported testamentary gift, namely a gift to Mr Lacroix of "my immovable property namely Land Parcel No S3664 and any structural building situated thereon, at Anse Aux Pins, Mahé, Seychelles and any chattels whatsoever or wheresoever which I shall die possessed of". It purported to be signed by the testator, and by only one witness, not two. The witness was named and described as "GRAEME HAMILTON THOMPSON, Notary Public, Hobart". Mr Thompson's seal was affixed to that document. It was no doubt a forgery. Peter Auksorius also discovered that the two parcels of land had been transferred to Chantelle Lacroix. The two transfers also purported to have been witnessed and sealed by Mr Thompson. They each bore the same date as the forged will, 13 March 2013.

19           Mr Thompson was an eminent and very experienced legal practitioner. He was admitted on 3 September 1948. Towards the end of his life he was the longest admitted practitioner living in Tasmania. He died on 13 December 2016, four weeks before the death of the testator. He was a notary public for 57 years.

20           Mr Thompson's son, Peter Thompson, signed an affidavit for the purpose of these proceedings. It appears from that affidavit that Mr Thompson kept meticulous records. He recorded details of everything he did as a notary, including details of what documents he signed and whose signatures he witnessed. That information was kept in a "protocol register". An extract from his protocol register for the period from 19 February 2013 to 28 March 2013 was annexed to Peter Thompson's affidavit. That extract contains no record of anything relating to the purported will dated 13 March 2013 or the transfers bearing that date.

21           Peter Thompson's affidavit also contained evidence to the following effect. In about late January 2017 he was contacted by Mr Lacroix who told him that he had made an agreement with Graeme Thompson that he had a first right of option to buy his notary stamp and seal after he died. Peter Thompson had no reason to disbelieve Mr Lacroix and no further use for the stamp and seals. He therefore sold the notary stamp and two boxes of notary seals to Mr Lacroix for $80, handing them over to him personally in mid-February 2017.

22           Peter Auksorius commenced proceedings in the Supreme Court of Seychelles seeking the revocation of the grant of probate of the forged 2013 will. On 12 March 2020 Mr Lacroix consented to judgment. That judgment involved a compromise. By a consent order dated 12 March 2020, Pillay J declared the will dated 13 March 2013 to be null and void and ordered that parcel S3664 was to be registered in the names of the testator's five surviving children, who were each to take a 1/6 undivided share, and of Mr Lacroix and his brother Gregory David Dale, who were each to take a 1/12 undivided share.

23           On 15 July 2022, final orders were made in the proceedings that Mr Lacroix had instituted in the Federal Circuit Court. Among other things, Mrs Lacroix consented to an order requiring her to transfer the S2616 and S3662 parcels to the surviving children of the testator. Those orders were made pursuant to the 2022 compromise. Mrs Lacroix was a party to that compromise.

The preparation and execution of the 2017 document

24           Mr Lacroix created the 2017 document. He admitted in a reply filed by him in these proceedings that he wrote and prepared the document. As he had accompanied the testator to the office of Murdoch Clarke when he gave instructions for the 2016 will, Mr Lacroix knew that he was not to benefit under that will, and that others were to be appointed as executors and trustees. As I have said, he was named as the executor in the 2017 document, and it provided for him to receive a gift of

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assets in the Seychelles. By clause 9(c) of the document, there was a gift of "my immovable property, namely Land Parcel Number S3664 and any structure or building situated thereon, at Anse Aux Pins, Mahé, Seychelles and any chattels whatsoever and wheresoever in the Seychelles". There was a substitutional gift to Mr Lacroix's children if he did not survive the testator.

25           The document was purportedly signed by the testator and purportedly witnessed by Mr Lacroix's father, Steven John Dale, and his brother Gregory David Dale. The address of each witness was given as "'Prince of Wales House', 77 Gepp Parade, Derwent Park, Tasmania, Australia, 7009".

26           Steven Dale did not swear an affidavit in these proceedings. There was no evidence as to anything said by him about the preparation or signing of the 2017 document. There is no evidence that the document was read by the testator before it was signed, nor is there any evidence that the contents of the document were explained to him.

27           On 20 February 2017 the solicitors for Mr Lacroix wrote to Murdoch Clarke outlining his instructions as to the preparation and execution of the 2017 document. In that letter they summarised those instructions as follows:

"(a)	The deceased communicated his desire to change his will, directly with Mr Lacroix, both on the telephone and in person, after the 13 December 2016 will was executed.
On Boxing Day, after a family lunch, also attended by Maryanne and Geoff Howell, the deceased asked to meet with Mr Lacroix in the lounge room at the house at 77 Gepp Parade, Derwent Park to further discuss his requirements and instructions. In relation to that meeting, a handwritten draft was prepared by Mr Lacroix in response to the deceased's request, and reviewed with the deceased at that meeting.
(b)	The deceased requested and instructed Mr Lacroix to draft his last Will, and the instructions were provided verbally by the deceased to Mr Lacroix.
(c)	The last Will was signed In the University Rose Gardens, opposite the ABC Building near the Railway Roundabout Hobart, on the date of the document, 5 January 2017.
Prior to the signing of the last Will on 5 January 2017, Mr Lacroix collected the deceased from 10 Whitbread Court, Glenorchy, and a final review of the will was undertaken by the deceased up at the Cross Roads on the upper Domain.
Upon the request of the deceased, Mr Lacroix drove him to a pre-arranged meeting in the University Rose Gardens with the witnesses. Mr Lacroix then left. Mr Lacroix was not present at the signing of the Will. He understands the only persons present were the deceased and the witnesses, Mr Steven Dale and Mr Greg Dale."

28           With that letter, those solicitors sent Messrs Murdoch Clarke a statutory declaration signed by Gregory Dale and dated 20 February 2017. That statutory declaration included the following as to the events of Boxing Day 2016 and 5 January 2017:

"…

3            On Boxing Day 2016 Poppy was at our family home at 77 Gepp Parade, Derwent Park for lunch. Also there were Adrian, his partner Jennifer and myself along with Poppy's eldest daughter Maryanne and her husband Geoff.

4            During that afternoon I saw Poppy in the lounge room with Adrian who was making some notes in a book. Poppy called me over to him and asked me if I

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would be a witness to his Will along with my father. He told me the Will still needed to be typed out. I agreed to be a witness. He told me he required myself and my father to meet him in the University Rose Gardens opposite the ABC building by the Railway Roundabout In Hobart on 5 January 2017 so we could witness his signature to his Will.

5            I met my father and Poppy at 4:15pm on 5 January 2017 at the Rose Gardens. Poppy told us he wanted to meet there because he wanted for one last time to revisit where he first fell in love with those beautiful gardens. No one else was present.

6            I heard Poppy tell my father that he was appointing Adrian as his Executor. A gift was to be given to his Church, which was so important to him. His children would each be given 20% of his estate in Tasmania and Olivia was to receive the contents of a box in his home. Adrian was to receive his land in Seychelles which Poppy promised him for his help nearly 10 years ago.

7            The three of us were sitting on the wooden seats in the centre of the Gardens amongst all the different beds of roses when Poppy signed his Will. My father and I both saw him sign it. My father and I each then signed it as witnesses in the presence of each other and Poppy. Once it was signed by all of us my father took possession of the Will and left the Gardens with Poppy. Poppy wanted my father to keep the Will and not release it to anyone until after he died.

…"

29           Gregory Dale went on to give an account of a meeting with Robert Auksorius, his uncle, on 4 February 2017. He said that Robert Auksorius offered him $25,000 to say that he had not properly witnessed the testator signing the 2017 document. That offer was said to have been made when Robert Auksorius was driving him home after a conversation in the lower Botanical Gardens car park.

30           Robert Auksorius deposed to a very different version of their conversation. He said that Gregory Dale told him on approximately three occasions that he had signed something at Gepp Parade at his father's house, that the testator was there on perhaps one occasion, but that nothing was ever signed in front of the testator. He said that a short time later he received a text message from Mr Lacroix saying that he was "not to see Greg again" and that, if he did, Mr Lacroix would take out a restraining order.

31           Gregory Dale and Robert Auksorius had a further conversation about the 2017 document on 24 February 2017. On that day Robert Auksorius was working on a construction site, and heard Gregory Dale call out his name. They had a conversation during which Mr Dale said that he and his father had both witnessed the 2017 will at his father's house at Gepp Parade.

32           On 7 September 2017 the two men had another conversation at the same work site. Robert Auksorius asked Gregory Dale when he was going to tell the truth about the 2017 will. Mr Dale said that he wanted to tell him the truth, but that he "didn't want anything to do with it". Mr Dale agreed to go to the office of Murdoch Clarke to make a statement about the execution of the 2017 document.

33           The two men went to the firm's office and saw a partner in the firm, Damian Egan. With Mr Dale's permission, Mr Egan recorded their conversation and had it transcribed. Mr Dale signed the transcript before leaving Mr Egan's office. He told Mr Egan that the testator was not present when he signed the document. Speaking of Mr Lacroix, he said, "… my brother scammed me into lying for him". He said that he thought he signed the document at his father's house; that the testator was not present; that only his father, his brother and himself were present; that he did not know who signed the testator's signature; and that he could not remember seeing that signature on the paper. He said that he had never gone to the rose gardens with the testator.

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34          The next day Mr Lacroix telephoned Robert Auksorius and told him to stay away from Gregory Dale or he would be "charged with harassment".

35           On 5 January 2017, the date when the 2017 document was purportedly signed, the testator's daughter Maryanne Howell and her husband Geoff were living with the testator in his home and caring for him. Both of them have sworn affidavits in which they said that the testator did not go out that day. Mrs Howell said that there were no visitors to the house that day other than her niece Janelle Auksorius and her young son. She remembered the day because the testator had criticised the boy's behaviour, and there had been some unpleasantness as a result. Mr Howell said that he remembered the testator preparing food for his chickens at about 1.30pm that day. He had been asked to recall the events of the day not long afterwards for the purpose of a police statement.

The contents of the 2017 document

36           Clause 3 of the 2017 document lists the names of the testator's five surviving children. Two of them have been misdescribed in that clause. John Ronald Auksorius was misdescribed as "John Arnold Auksorius". Robert Tony Auksorius was misdescribed as "Robert Anthony Auksorius", although he usually gives his full name as Robert Anthony Auksorius. Similar mistakes occurred in the testator's 2016 will, and Mr Lacroix had a copy of that will.

37           In clause 6, Mr Lacroix was purportedly appointed as the testator's executor. The clause went on to provide that if Mr Lacroix predeceased the testator or refused or was unable to act or continue to act as his executor, then "Mindaugas Baniulis of Konstitucijos Ave. 7, LT-09308 Vilnius, Lithuania" was appointed to be the executor in place of Mr Lacroix. None of the testator's surviving children had heard of Mr Baniulis. He is a Lithuanian lawyer. As a result of an enquiry he sent an email to Peter Auksorius on 26 June 2017 advising as follows:

"I hereby confirm that neither I nor anyone from our law firm (to my knowledge) had any contact with the late Paul Peter Auksorius. Furthermore, I confirm that neither I nor anyone from our law firm agreed to be an executor of the late Paul Peter Auksorius's will."

38           Clause 9(a) of the 2017 document made provision for a legacy of $5,000 bequeathed to "Hobart Salvation Centre of Glenorchy, TAS 7010". Pastor Neil Griggs from the Hobart Salvation Centre swore an affidavit for the purpose of these proceedings. He is a trustee of the Hobart Salvation Centre Trust, which operates the centre. He knew the testator for many years as a longstanding and dedicated member of the centre. His affidavit contains evidence to the following effect. The testator donated $10,000 to the centre on 10 June 2016. Over the years, on at least two occasions, Pastor Griggs suggested to the testator that it would be best for the centre if he did not leave any money to it in his will because previous bequests in wills had caused quite a deal of legal difficulty. The testator responded that he understood and appreciated the pastor's reasons, and that he would comply with his request. They did not otherwise speak about his will or his dying wishes. There was no discussion of any further donations after the payment of the $10,000.

39   Clause 4 of the 2017 document reads:

"My darling daughter, Christine Anita Dale is now deceased and with her Lord and
Saviour."

40   In his affidavit, Pastor Griggs said this about that clause:

"I knew Paul well, and he was deeply concerned about how his daughter Christine stood with the Lord. Paul held a sincere belief in the necessity to be baptised and receive the Holy Spirit. As such, given that Christine was un-baptised I consider it unlikely that he would have thought that being 'with her Lord and Saviour' applied to

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anybody who had not been baptised. He would have believed that Christine's future
would depend entirely on the Lord's Grace and Righteous Judgment."

41           The second specific request in the 2017 document, in clause 9(b), is insignificant. It was a purported request to the testator's granddaughter, Olivia Dale, of crockery, jewellery, cash and items in a blue box at the testator's home.

42           However the third specific gift was the gift to Mr Lacroix that I have already referred to – the purported gift of real estate and chattels in the Seychelles. There was a provision that Mr Lacroix's children were to receive those assets if he did not survive the testator. I have already referred to the evidence that the testator believed that he no longer owned any real estate in the Seychelles.

43           The 2017 document did not contain any other specific gifts. It provided for the residuary estate to be equally shared between the testator's five surviving children, two of whose names were again incorrectly stated.

44           There is a substantial body of evidence as to the testator's views about Mr Lacroix. That evidence compels a conclusion that he would not have appointed him as his executor or made provision for him in his will. Several witnesses deposed to the testator having believed that Mr Lacroix redirected his mail to a private post office box without his consent in around 2013, and that that led to a breakdown of the relationship between him and Mr Lacroix. After the testator's death, Murdoch Clarke obtained from Australia Post a copy of a redirection document showing that the testator's mail was redirected to the GPO box that was being used by Mr Lacroix and his father as the postal address of their business.

45           A number of witnesses described Mr Lacroix and his father making repeated enquiries about his will following the death of Christine Dale in 2016, and of the testator becoming increasingly irritated by Mr Lacroix's repeated enquiries about his will.

46          Several witnesses stated in their affidavits that, following the death of Christine Dale in 2016, the testator said that he did not want to make any provision for her family in his will. Some of those witnesses recalled him saying that he had done enough for her by paying for her medical treatment before she died of cancer. One witness said, "He told me specifically that he did not want Mr Lacroix to receive anything, and he did not trust Mr Lacroix."

47           The executors appointed by the 2016 will, John Auksorius and Maryanne Howell, both provided substantial care and assistance to the testator towards the end of his life. John Auksorius lived next door to him. Mrs Howell and her husband moved in with him on 20 December 2016. John and Peter Auksorius both stated in their affidavits that the testator told them that he had decided to name his children John and Maryanne as his executors because of their positions as his personal carers.

Status of the 2017 document

48           The evidence established that Murdoch Clarke acted as the testator's solicitors from about 1968 until his death. He was a client of Robert Badenach from 1986 onwards. Before then he was a client of Mr Badenach's father. The firm made a number of wills for him over the years. It would have been quite out of character for him to have asked a family member to prepare a homemade will.

49           The evidence about Mr Lacroix's activities relating to the Seychelles assets compels a conclusion that he set out to defraud the testator of those assets. It is clear that the testator believed that those assets had been lost. It is clear that the purported will dated 13 March 2013 was a forgery, and that Mr Lacroix knew it to be a forgery. The evidence establishes that the testator did not have an opportunity to sign the 2017 document on 5 January 2017. Mr Lacroix's conduct at the funeral was

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inconsistent with that document existing. The contents of the 2017 document are inconsistent with the evidence as to the testator's belief that the assets in the Seychelles had been lost and with the evidence as to his views about Mr Lacroix, Christine Dale, and her family generally.

50           All of the evidence compelled a conclusion that the 2017 document was a forgery, and I therefore made a finding to that effect on 14 March 2023. I was also satisfied that Mr Lacroix knew it to be a forgery.

The 2016 will

51           The two attesting witnesses to the 2016 will, Mr Badenach and Ms Cassar, swore affidavits establishing that it was duly executed. However the testator's surviving children were misdescribed in clause 2 of that will.

52           Clause 2 contained six names, but the testator had only five surviving children. The clause named "PETER DENNIS AUKSORIUS, JOHN ARNOLD AUKSORIUS, BARRY AUKSORIUS, ROBERT AUKSORIUS, ANTHONY AUKSORIUS and MARYANNE HOWELL". As I have said, John's middle name is Ronald not Arnold, and Robert's full name is Robert Tony Auksorius. A copy of Robert's birth certificate is annexed to his affidavit. The testator did not have a child named Anthony.

53           Mr Badenach explained in his affidavit that English was the testator's second language, that he spoke with a thick Lithuanian accent, and that at times he was difficult to understand. He did not provide the names of his children in writing. Mr Badenach read the will aloud to him before he signed it, and obtained confirmation that he understood its contents and its effect.

54           It is well established that a false description of an individual in a will does not vitiate the gift to that individual if his or her identity can be ascertained with certainty: Morrell v Fisher (1849) 4 Exch 591 at 604-605; Cowen v Truefitt Ltd [1899] 2 Ch 309; Public Trustee v Butters (unreported, B24/1994, Zeeman J) at 3; Hopwood v Cuthbertson [2001] TASSC 64, 10 Tas R 186 at [16]-[19] (Full Court).

55           Having regard to the evidence concerning the testator's five surviving children and his intention to benefit them, I was satisfied that the person described in the will as John Arnold Auksorius was John Ronald Auksorius, that the person described in the will as Robert Auksorius was Robert Tony Auksorius, and that there was no identifiable individual to whom the name Anthony Auksorius was intended to refer. I was satisfied that the testator intended his son Robert Tony Auksorius to receive a 1/5th share in his estate, not two 1/6th shares in the estate.

56 In the counterclaim, an order was sought under s 42 of the Wills Act 2008 for the rectification of cl 2 so as to correctly name the testator's surviving children. I concluded that such an order was unnecessary, and that it would be sufficient to make a declaration as to the true construction of the clause.

Conclusion

57           For the reasons stated, I made orders on 14 March 2023 pronouncing for the force and validity of the 2016 will, ordering that probate of that will be granted to the counterclaimants subject to the usual formalities, and declaring that upon a true construction of that will the words John Arnold Auksorius meant and referred to the testator's son John Ronald Auksorius and that the words Robert Auksorius and Anthony Auksorius meant and referred to one person, namely the testator's son Robert

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Tony Auksorius and that he was entitled to one share in the estate of the deceased pursuant to that clause.