COUNSEL: In person (Appellant) J B Whittle SC - (1/2/3 Respondents) B J Burke - (2/3 Respondents)
SOLICITORS: Appellant - n/a Stewart Levitt & Co Solicitors (1 Respondent) Shaw McDonald (2/3 Respondents)
CATCHWORDS: PROBATE - whether will revoked by tearing up - presumption as to revocation of will - renunciation of probate - existence of de facto relationship - revision of ex tempore judgment - bias - alleged perjury of witnesses - credibility of evidence - ND
This appeal concerns the estate of the late Eveline Hillston (the deceased) who died in 1994, aged 83. The appellant, Michael Bar-Mordecai, claimed to be entitled to the whole of the estate on intestacy, the deceased having revoked her August 1989 will by tearing it up in front of him in 1992. He also claimed that he was her de facto husband within the meaning of the Wills, Probate and Administration Act 1898. The trial judge found against the appellant on both these issues, finding that the appellant had himself destroyed or suppressed the 1989 will after the death of the deceased. His Honour found that no de facto relationship had been established. The appellant appeals these findings.
The appellant also appeals from the trial judge’s finding that the appellant had renounced probate of the 1989 will, and his Honour’s grant of letters of administration with the 1989 will annexed to the third respondent Alan Hillston.
The principal grounds of appeal are that the trial judge failed to recognise the relevance of the appellant’s memory deficit, failed to explain the effect of the Jones v Dunkel rule and revised his reasons after their ex tempore delivery. These and other aspects of the trial judge’s conduct were alleged to demonstrate actual bias. In addition the appellant maintained that there were many fact finding errors made by the trial judge on material matters and that the respondents’ witnesses had perjured themselves.
The appellant sought to rely on a large number of affidavits said to be admissible in the appeal as ‘fresh evidence’. The reception of these was, in very large part, refused.
Held (The Court):
The findings made in relation to the alleged destruction of the will were open…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bar-Mordecai v Rotman [2000] NSWCA 123
Case
[2000] NSWCA 123
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from a decision of Einstein J regarding the revocation of a will and the existence of a de facto relationship. The appellant, Bar-Mordecai, sought to overturn the primary judge's findings on these matters. The respondent, Rotman, was the executor of the deceased's estate.
The legal issues before the Court of Appeal included whether the deceased's will had been revoked by tearing, the presumption of revocation arising from a will being missing, and the existence of a de facto relationship between the appellant and the deceased. The appeal also involved consideration of the admissibility of fresh evidence and the credibility of witnesses, particularly the appellant.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The trial judge had found the appellant's evidence to be unreliable and tailored to his case, often exaggerating or being untruthful. This assessment of credibility was central to the findings regarding the revocation of the will, with the primary judge concluding that the deceased, a person of strong character, would not have left her affairs in disarray. The court also refused to admit significant further evidence on appeal, finding no basis to depart from the trial judge's decision. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In examining the trial and his Honour’s extensive reasons, it is important to note that the trial proceeded on an agreed basis for reception of statements made by or attributed to the deceased. The agreement was that all evidence of statements made by the deceased orally, or in any written document, would be admitted as evidence not only of the making of the statements, but of the truth of the facts the subject of the statements. The agreement did not affect the entitlement of any party to test the credit of a statement of a witness of what he or she had attributed to the deceased or to test the veracity of any document said to have been written by the deceased.Further evidence on appeal At the commencement of the appeal the appellant sought to rely upon a large number of affidavits said to be admissible on the appeal as ‘fresh evidence’. These were in part affidavits in existence as at the trial but either not read or read but then withdrawn by the appellant and in part affidavits brought into existence since the trial. For the most part we refused to receive the affidavits, in all instances but one giving our reasons at the time. The exception was that on 9 December 1999, when we refused to receive the affidavit of Gavin Albert Askew sworn 29 December 1996, we said that the reasons for our decision would be given as part of the reasons for judgment on appeal. The appellant had relied upon Mr Askew’s affidavit at the trial. When the affidavit was read, Einstein J rejected some paragraphs but gave leave to the appellant to adduce oral evidence about the matters deposed to in those paragraphs. The matters include a conversation that Mr Askew said he had had with the deceased. On 20 May 1998 the appellant called Mr Askew, who gave some evidence in-chief about what he observed of the relationship between the deceased and the appellant. After an adjournment and one more question and answer, the transcript records that the witness was stood down and other witnesses interposed. Later on the same day Mr Askew was recalled. Cross-examination by Mr Whittle SC, who appeared at the hearing for the second and third defendants, began immediately. In part, this was directed to matters of credit including the medical condition of Mr Askew. During this cross-examination, the trial judge said:Mr Whittle one of the matters which concerns me is where one has a witness who has a serious condition and where I don’t have any medical information which can assist me, plus questioning by yourself, and indeed matters which I would have perhaps sought to ask this witness about what I think is appropriate as Dr Bar-Mordecai is the witness’ medical practitioner, for Dr Bar-Mordecai to give some consideration overnight to whether he has any advice which he may wish to give to the witness about the matter, because first thing in the morning what I propose to do is ask the witness whether he feels in any form of discomfort in terms of sustained questioning. I apprehend that you have really only just commenced and when one finds that there is a witness whose health may be affected by the occurrence during the hearing, it strikes me that it is important for the court, as well as members of the profession, to understand it in order not to cause more difficulty than perhaps they appreciated they might.
Decision
Reasons for decision
Einstein J, quite properly, was in the course of making arrangements for Mr Askew to receive independent pro bono advice from a solicitor. That would have enabled his Honour to deal with any application on behalf of Mr Askew to claim privilege on the ground of self-incrimination for material which seems to have gone only to Mr Askew’s credit. That matter having been dealt with, cross-examination on the admitted material could have proceeded. His Honour would no doubt have been sensitive to any attempt by the cross-examiner to cross-examine unfairly. The appellant deliberately chose to withdraw the witness, and in our opinion there is no basis in that circumstance or in the circumstances that have emerged about the nature of Mr Askew’s evidence that would support the appellant’s application to be permitted to rely upon the material contained in the affidavit in this Court.The judgment at first instance While the judgment is very long, taking in excess of two days to be delivered ex tempore, it is useful to summarise it in order to understand the issues which present themselves for determination in the appeal. The central findings of his Honour as to revocation and the existence of a de facto relationship between the appellant and the deceased revolved around the credibility of the appellant. His Honour found that the appellant’s evidence was unreliable, that it was tailored to further his case and that it was either false or only true in part. The appellant, according to his Honour, was prone to gross exaggeration. Where his version could not be tested by reference to the evidence of other witnesses, eg his claim of destruction of the will by the deceased, his Honour found that the appellant was ‘generally content to favour his case at the expense of the truth’. His Honour made some specific findings of untruths by the appellant. For example, his Honour noted that the appellant was asked the following question in cross-examination:… would you not have expected that having torn up the August 1989 will, in terms of [the Deceased’s] character, she would have been very likely to have gone and made another will very shortly after that …The answer was ‘definitely no’ - the Plaintiff seeking to support the answer by the suggestion that the Deceased in 1990 had said to the Plaintiff that she wanted to revoke her will.His Honour said that the answer was a clear untruth and that the ‘evidence very amply established that the Deceased was a person of strong and independent character who would not have left her affairs in a state of disarray’. Another example is the following evidence given by the appellant in cross-examination:Q. Did you know before or after Mrs Hillston’s death that a de facto spouse might have a claim on the estate of a fellow de facto spouse?A. I don’t think that issue really came into my head.Q. When did it come into your head?A. When she died.Q. In other words you are saying the period immediately following her death?A. It really all hit me when I was distressed on the Saturday.Q. It was on the very day she died that you realised you may have a claim on her estate?A. Yes.His Honour said that this was another answer which was a clear untruth.