Boland v Morton

[2004] NSWSC 1173

CITATION:	Boland v Morton; Estate of Finlow [2004] NSWSC 1173 revised - 16/02/2005
HEARING DATE(S):	20/09/04, 21/09/04, 22/09/04, 23/09/04,24/09/04, 30/09/04, 11/10/04, 05/11/04, 06/12/04
JUDGMENT DATE:	23 December 2004
JUDGMENT OF:	White J
DECISION:	1. Order that the claims for relief in the amended statement of claim be dismissed; 2. Counsel to be heard on the question of costs; 3. Direct that the exhibits not be returned to the parties until further order.
CATCHWORDS:	PROBATE - Original will not located - Whether photocopies of the will are forgeries - Whether the original will stolen - No question of principle.
LEGISLATION CITED:	Guardianship Act 1987 (NSW) Wills Probate and Administration Act 1898 (NSW)
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Welch v Phillips (1836) 1 Moo PC 299; 12 ER 828 McCauley v McCauley (1910) 10 CLR 434
PARTIES :	Michael Durham Boland v Rhana Janette Morton; Estate of Phyllis Catherine Finlow
FILE NUMBER(S):	SC 121325/02
COUNSEL:	Plaintiff: R K Newton Defendant: M S Wilmott SC, M Sneddon
SOLICITORS:	Plaintiff: Maurice Buckley, C T Poole & Son Defendant: Lees & Givney Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 23 December 2004

121325/02 MICHAEL DURHAM BOLAND v RHANA JANETTE MORTON; Estate of Phyllis Catherine FINLOW

CONTENTS

Heading Paragraph No.

Introduction 1
The Alleged Will 5
An Initial Credit Issue 7
Mrs Finlow’s Diaries and Mr Marshall 11
Mr Marshall’s Claimed Acquaintance with the Finlows 15
Preparation and Signing of the Alleged Will 18
The Typing 28
Disowning the Defendant 32
Instructions for Cremation 34
Making Photocopies 36
The Freezer Chest 39
Mrs Finlow Considers Making a Will 41
Events of 5 January, 1996: Background 47
The Plaintiff’s Verson of Those Events 50
Evidence of Sister Burrows 59
Findings About Events of 5 January, 1996 65
Mr Finlow’s Estate: Correspondence from R L Whyburn
& Associates 81
1996 Applications to the Guardianship Board 87
Plaintiff’s 1999 Application to the Guardianship Tribunal 91
Mr Marshall’s Work at Carlingford in July 2001 95
Events after Mrs Finlow’s Death: Cremation or Burial? 97
The Expert Evidence 117
Conclusion on Application for Probate 132
Application to Remove Defendant as Administrator 138
Orders 148

JUDGMENT

Introduction

1 HIS HONOUR: On 30 July 2002 Phyllis Catherine Finlow died aged 91. She was survived by two children, who are the plaintiff and the defendant.

2 On 12 November 2002 letters of administration of the estate of Mrs Finlow were granted to the defendant. On 18 December 2002 the plaintiff commenced these proceedings seeking, initially, an order that the grant of the letters of administration to the defendant be revoked. By statement of claim filed on 12 February 2003 the plaintiff sought an order that probate of a will dated 20 May 1990 of Mrs Finlow be granted to him.

3 In his statement of claim the plaintiff also seeks an order that the defendant be removed as administrator on the ground that she is not a suitable person to have the care, conduct and responsibility for the administration of the deceased’s estate. Although evidence was led as to these matters, ultimately no submissions were advanced in support of that application.

4 The original of the alleged will has not been located. The principal issue was whether the copies of the alleged will produced by the plaintiff and an apparent attesting witness, Mr Marshall, were forgeries. That issue cannot be resolved by handwriting evidence, or other scientific evidence from document examiners. Their evidence was inconclusive. The matters raised are serious. The defendant charges the plaintiff and Mr Marshall with colluding to produce false documents and to give false evidence. For his part, the plaintiff says that on the evening of 5 January 1996 the defendant and her husband, Mr Morton, admitted to stealing the wills of both Mr and Mrs Finlow. Mr Marshall contends that he overheard the defendant’s confession.

The Alleged Will

5 Three copies of the alleged will were produced: two by the plaintiff and one by Mr Marshall. They said that Mrs Finlow gave them the copies on 21 May 1990. The document reads as follows:

“THIS IS THE LAST WILL AND TESTAMENT made by me PHYLLIS CATHERINE FINLOW, home duties, of number 2 Hilar Avenue, Carlingford, in the State of New South Wales.
I. I hereby revoke all prior wills, testamentary instruments made by me.
2. I hereby appoint MICHAEL DURHAM BOLAND, my only son as sole executor and trustee of this my will and my whole estate.
3. If the said MICHAEL DURHAM BOLAND not survive me, I appoint the PUBLIC TRUSTEE OF N.S.W. state as my executor and trustee.
4. I hereby instruct my remains upon my death are to be cremated and my ashes be interred as directed by my executor.
5. After the payment of all my debts at the time of my death, I hereby bequeath the remainder of my real and personal property and estate upon my death absolutely and solely to my husband LESLIE FINLOW.
6. In the event that my husband LESLIE FINLOW does not survive me, I hereby bequeath the said remainder of my real and personal property and estate upon my death absolutely and solely to my only son MICHAEL DURHAM BOLAND to hold, sell, call in or convert into money.
7. I hereby bequeath nothing of any nature to my only daughter RHANA JANETTE MORTON whom I have disowned.
8. If my herein husband and herein son do not survive me, I hereby bequeath the said remainder of my estate to the children of my said son to be divided equally.
Signed by me PHYLLIS CATHERINE FINLOW in witness whereof I set my hand this Twentieth day of May, One thousand nine hundred and ninety, for my last will and testament,
in the presence of us both present at the same time who at her request in her presence hereby subscribe our names as attesting witnesses:
LESLIE FINLOW STEPHAN MARSHALL
2 Hilar Avenue, 19 Almoola Street,
Carlingford N.S.W. Griffith N.S.W.”

6 The document bears what appear to be the signatures of Mr and Mrs Finlow and of Mr Marshall.

An Initial Credit Issue

7 In May 1990 Mr and Mrs Finlow lived at 2 Hilar Avenue, Carlingford, NSW. The plaintiff resided in Victoria. The plaintiff stayed with Mr and Mrs Finlow from 19 May to 22 May 1990. He had arranged with his mother to visit at about that time. An entry in Mrs Finlow’s diary for 21 May recorded that “Michael will arrive in Sydney 21st-27th”. That entry was subsequently lightly crossed over and ticked. I infer that was done by Mrs Finlow after the plaintiff arrived. An issue arose in relation to the plaintiff’s credit about the number of times he had visited his mother and stepfather at their Carlingford home. Mr and Mrs Finlow had lived in Carlingford from 1978. It was put to the plaintiff in cross-examination that before May 1990 he had never been to his mother’s house at Carlingford. He denied this and said that he visited the Carlingford home sometimes three times a year, sometimes once a year, and on average twice a year. He estimated that between 1978 and 1990 he had visited the house on about 24 occasions. On each occasion he drove.

8 This evidence was impossible to reconcile with a mother’s day card which the plaintiff sent to his mother. Mrs Finlow’s diary for 9 May 1990 recorded the receipt of a mother’s day card from the plaintiff. The plaintiff wrote the following on the card:

“ Current plans point to arrival in Sydney week of 21-27 May. – can’t be too definite unfortunately as have more matters to attend to here (Melb) and then in Canberra. So much depends on other people. Looking forward to seeing you and Les. Thanks for letter with instructions to find Hilar. Will be OK now as also have copies of Rhana’s street directory. ”

9 The plaintiff sought to explain this evidence in two ways. First he said the card may not have been sent in 1990 but related to a much earlier visit, probably in 1978. However the correlation between the note in Mrs Finlow’s diary anticipating the plaintiff’s arrival in Sydney for the week 21-27 May 1990 and his statement to that effect in the card is compelling. Secondly, the plaintiff said that his mother was so very loving and careful towards him that she would always give him directions so as to ensure he did not get lost, even though he had repeatedly visited. Although that may explain why his mother would provide instructions for him as to how to find the Hilar Street house, even though he had visited it over twenty times over the previous twelve years, it does not explain his statement that he should be fine because he had his sister’s street directory.

10 Mrs Finlow’s diaries for the years 1986 to 1989 inclusive were also tendered. They recorded telephone calls, and visits to and by the Finlows. They contain no record of the plaintiff having visited. I reject the plaintiff’s evidence that he had repeatedly visited the Carlingford property between 1978 and 1990. I think it probable that this was the first visit he had made to his mother’s house in Carlingford. The defendant gave evidence of a conversation with the plaintiff in 1989 in which she suggested that he might visit his mother at Carlingford as she had been living there for twelve years and he had never seen her there. The plaintiff said that that was a good idea. According to the defendant, the plaintiff did not dispute the fact that he had not been to the Carlingford house before. I accept the defendant’s evidence in this respect. I reject the plaintiff’s evidence that he had visited the Carlingford house before May 1990.

Mrs Finlow’s Diaries and Mr Marshall

11 Mrs Finlow’s diaries for this period have an additional significance. They contain no reference to any communication with the plaintiff for the years 1986 to 1988. There are four references to him in 1989. It is clear that Mrs Finlow had much more contact with the defendant. There are numerous references to telephone calls with the defendant over that period and there are references also to the defendant staying with her mother. Whilst it need not follow that Mrs Finlow may have decided to disown her daughter and for that reason to have left her estate to her son, the very small amount of contact between Mrs Finlow and her son evidenced from her diaries is a reason for caution in considering the evidence of the plaintiff and Mr Marshall.

12 Of more significance is the complete absence in the diaries of any reference to Mr Marshall. It is Mr Marshall’s evidence that he first met Mr and Mrs Finlow in 1987 or 1988 and between then and May 1990 he met them several times a year. He said that Mr Finlow had contacted him in response to an advertisement which he had put on a noticeboard offering his skills, apparently as a handyman. He said that he said the purpose of the visits was to help them with various things that they required particularly repairing window frames and extensions to a garage port. In his affidavit of 17 April 2003 he described himself as a friend of Mr and Mrs Finlow. Although if this evidence is to be accepted it would seem that Mr Marshall primarily dealt with Mr rather than Mrs Finlow, it is nonetheless surprising that no reference was made to his visits to the house. It is more surprising that his name is not included in the Finlows’ address book and teledex.

13 In May 1990 Mr Marshall was living in Griffith. He said that he arrived at the Carlingford house on the 18th or 19th May and stayed there for three or four days. He said that he did that without having made any prior arrangement with either Mr or Mrs Finlow that he would stay at the house. Mrs Finlow’s diary makes no mention of Mr Marshall, nor of his staying in the house at this time. If Mr Marshall’s evidence is truthful, this is surprising. The diary records events in Mrs Finlow’s life such as telephone calls she made or received, and visits she made or received. I can illustrate this by entries in the early months of 1990. For example there is an entry for 3 January 1990 recording the arrival of someone called Les from Bowral. His surname is difficult to decipher. There is a later entry of 10 January 1990 recording that Les would be staying two to three days. There is a record of the defendant having rung on 11 January 1990. There is a record of a lunch with “Mick and Jay” on 14 January 1990. On 23 January Mrs Finlow recorded that Rhana rang. On 27 Janauary 1990 she recorded that Rhana would be calling around 3pm on the way to Kirribilli. On 29 January she recorded for how long Rhana and Samantha (Rhana Morton’s daughter) would be staying. There is a record of “Kath and Graham” coming to dinner on 17 February. There is a record on 24 February of Mrs Finlow telephoning Janet. On 13 March there is a record of Janet and the two children arriving for afternoon tea. On 20 March Mrs Finlow recorded having afternoon tea with certain other people. On 21 and 23 March 1990 she recorded having photos of Ayers Rock, which had been sent to her by the plaintiff, framed. On 27 March she recorded a phone call from Ian and Rhana (i.e. the defendant and Mr Morton). So it goes on.

14 It is surprising in these circumstances that there is no reference at all in the diaries to Mr Marshall. It is suspicious that there is no reference to his staying for three or four days in the house.

Mr Marshall’s Claimed Acquaintance with the Finlows

15 There is no corroboration of Mr Marshall’s evidence of visiting the Finlows except by the plaintiff. The plaintiff said that he first met Mr Marshall between 1984 and 1986 at his mother’s house. He said that after that first meeting he saw Mr Marshall about once every two years at his mother’s house until Mr Finlow died, after which time he only saw Mr Marshall about twice. Mr Finlow died on 13 January 1996. However I have rejected the plaintiff’s evidence that he visited the Carlingford home before 1990.

16 Mrs Janet Bilinsky had known Mrs Finlow since she was a child and knew her as “Aunty Phil”. Mrs Bilinsky knew the Boland children until Mrs Finlow and her then husband Mr Boland divorced and the children went to live with their father. From May 1974 until the end of 1983 Mr and Mrs Finlow were regular visitors to the house of Mr and Mrs Bilinsky in Kenthurst. This was particularly so after Mr and Mrs Finlow purchased their Carlingford home. Mr and Mrs Finlow attended significant events in the lives of the Bilinsky children such as weddings, graduations and birthdays. They continued their contact with each other after the Bilinskys moved to Bowral in 1983. Mrs Finlow’s diaries from 1986 to 1990 show regular contacts with Mrs Bilinsky. Mr and Mrs Bilinsky continued to visit the Carlingford home from 1988 to 1993 when their younger son was enrolled in The Kings School in Parramatta.

17 There is no evidence to corroborate Mr Marshall’s evidence of the work he did for the Finlows. Mr Finlow was a competent handyman in his own right, quite capable of doing the kind of odd jobs which Mr Marshall said he helped with. Mr Finlow himself had made improvements to the home and the garage and had built a deck at the rear of the house. However all the major building work had been carried out by 1983. Mr Bilinsky said there was no occasion when either Mr or Mrs Finlow mentioned to him that work had been performed on their behalf by an outside tradesman. I accept Mr Bilinsky’s evidence that no extension work was carried out to the garage after 1983.

Preparation and Signing of the Alleged Will

18 The plaintiff described the typing and signing of the alleged will as follows:

“ I was present on the morning of 20 May 1990 at my mother’s home 2 Hilar Avenue Carlingford when she typed a will document on an old manual portable Olivetti typewriter. She typed the will in my presence and then asked her husband, Leslie Finlow and a friend, Stephan Marshall to witness her signature. My mother signed the will in their presence who were present at the same time. Then Leslie Finlow and Stephan Marshall each signed the will in my mother’s presence and in the presence of each other. I was also present and saw each of my mother, Leslie Finlow and Stephan Marshall sign the will. ”

19 Mr Marshall said that he was at the home in May 1990 when Mrs Finlow asked him if he would be prepared to witness the will. He said he observed Mrs Finlow reading what appeared to be a rough draft will in her handwriting as she sat at the typewriter and that she typed the document that he came to witness. He said “I recall Michael Boland, the son of Mrs Finlow, was also present while Mrs Finlow typed this document.”

20 The plaintiff was cross-examined in detail about precisely where he was whilst his mother was typing the document as he claimed. He was speaking of events which had occurred fourteen years previously and which he had not described in detail in his affidavit sworn in 2003. He said that whilst she was typing the first one-third of the document he was sitting in the sitting-room area. Later, he said that he was sitting in the lounge-chair in the sitting-room when she discussed the notes and read out the will before typing it and then, just after she started typing, she asked all of them to leave the room to get a cup of tea. The plaintiff said that when they left the room Mrs Finlow started typing the will and when he came back with a cup of tea for her she was up to a third of the way through it. He said that Mr Finlow and Mr Marshall were on the verandah; that he took the cup of tea into his mother and then went outside and stayed on the back verandah with Mr Marshall and Mr Finlow.

21 The discrepancies in the course of the plaintiff’s evidence as to where he was when the will was being typed are minor. The plaintiff was cross-examined as to an alleged discrepancy between the statement in his affidavit that the will was typed in his presence and the evidence which I have described. He said when he was present in the sense that he was in the house the whole time on the back verandah with Mr Marshall and Mr Finlow. In itself I do not regard the difference between the plaintiff’s evidence in his affidavit and his oral evidence as to his being present when the will was being typed as important. However his professed recollection of the exact sequence of events is remarkable.

22 The plaintiff said that it took a minimum of one hour and up to an hour and a half for his mother to call them in, read out the notes for the will and type the will and call them back in.

23 This evidence was given by Mr Boland on the second day of the hearing.

24 On the third day of the hearing Mr Marshall gave evidence. His evidence was entirely consistent with the plaintiff’s evidence on this subject. He said that when Mrs Finlow was sitting at the typewriter he was initially in the loungeroom and then removed himself to the back balcony. Although he had said in his affidavit that Mr Boland was present whilst Mrs Finlow typed the will, in his oral evidence he said that the plaintiff went to the back verandah with Mr Finlow and him; they having been asked to go there. He said that when in his affidavit he had said that Mr Boland was present when Mrs Finlow typed the document, he meant that he was at the premises. Mr Marshall also gave evidence that about an hour or an hour and a half elapsed between Mrs Finlow saying that she had made some notes about what she wanted to put in the will and her typing the document. However in his affidavit, he had said that after Mrs Finlow told him that she had made some notes which she would type up he “then” observed her reading a rough draft of a will in her handwriting as she sat at the typewriter.

25 Neither Mr Marshall nor the plaintiff professed any difficulty of recalling their precise movements, or the movements of the other persons in the house, whilst the document was allegedly typed by Mrs Finlow. That they should both have such an accurate recollection, and that their recollections should coincide on matters of detail which had been omitted from their affidavits, is quite remarkable. It is a further reason for being cautious before accepting their evidence.

26 It is not clear why Mrs Finlow should have asked Mr Marshall to witness the will. Mr Marshall describes himself as a friend of Mr and Mrs Finlow, although I have already remarked on the absence of any corroborative evidence of that assertion. He said that Mrs Finlow told him that “I want someone outside my family and friends to be a witness. You will help me won’t you?” In fact the will was witnessed by both a family member (her husband) and, (according to Mr Marshall), a friend; although not a close friend. If Mrs Finlow did execute a will, she was obviously unaware of the consequences of the will being witnessed by a beneficiary. Her husband was the principal beneficiary of the will in the event he predeceased her. If she had no objection to her husband witnessing the will, it is not apparent why she would involve a person who was not a close friend in her private affairs, when her son was to hand. Her reluctance to have her son involved could not have been due to any concern that he would not inherit if he witnessed the will, because she had no such concern in relation to Mr Finlow’s witnessing the will.

27 Mrs Finlow made no entry in her diary of having made a will. Had she made a will it is likely she would have referred to it in her diary. She recorded other events of less moment, such as sending and receiving letters, visiting the doctor and framing photographs.

The Typing

28 The defendant said that her mother did not type and that she had never seen any typewriter at her mother’s home. She deposed in about 1991 to her mother having asked her to type a letter for her, which the defendant did at her office. On the other hand the plaintiff said that he had observed numerous examples of his mother’s typewritten work and he recalled her typing on the manual Olivetti typewriter. The plaintiff also produced what appeared to be typewritten letters signed by Phyllis and Les Finlow and apparently typed by Mrs Finlow. Mr Marshall deposed to having carried out minor repairs to the typewriter from time to time. He produced what he said was a copy of pages from Mrs Finlow’s instruction manual for the typewriter, which he said he used to make the repairs.

29 Mr Reich was a neighbour of Mr and Mrs Finlow. He had visited the Finlow’s household “a few times”. He did not recall seeing a typewriter. However I do not draw much from that as it does not appear he had much opportunity to observe whether there was a typewriter in the house or not.

30 Samantha Morton, the daughter of the defendant, also deposed that she had never seen a typewriter in Mrs Finlow’s house although she stayed with Mr and Mrs Finlow for about five days in their home during a visit in the mid 1980s and again stayed for about three days with her mother in January 1990. She was not available to be cross-examined about her opportunity for observation.

31 The only direct evidence to impugn the evidence of the plaintiff and Mr Marshall that the defendant typed the will is that of the defendant. I would not disbelieve the evidence of the plaintiff and Mr Marshall on the basis of the defendant’s evidence alone. I do not think that the fact that the will is typed is a reason for not accepting it as genuine.

Disowning the Defendant

32 Nor is it a sufficient reason not to accept the document as genuine that it expresses an intention by Mrs Finlow to disown the defendant. Certainly the evidence shows that Mrs Finlow had much greater contact with her daughter than her son up to May 1990, but it is also clear that relations between Mrs Finlow and her daughter were difficult at times.

33 Mrs Finlow separated from her then husband and her two children in about 1952 when the defendant was 15. It was not until 1969 that any contact between them was resumed. It seems that Mrs Finlow was a difficult woman at times. Her relations with her daughter were variable. Her diary records her hanging up on her daughter in about June 1990, telling her that she had got the wrong number. She wrote a letter to her daughter in 1990 which was critical of her. At other times their relationship appears to have been good. However it cannot be said that the wish to disown her daughter expressed in the will was so out of character with what is known of Mrs Finlow’s feelings towards her daughter that the disowning of her daughter is itself is a ground for doubting the genuineness of the document.

Instructions for Cremation

34 What is of more consequence is that the document contains an instruction by Mrs Finlow that she be cremated. There is evidence, other than from the defendant, that Mrs Finlow wished to be buried after her death, not cremated. Mrs Janet Bilinsky gave evidence that Mrs Finlow was a devout Catholic and had said to her that under no circumstances did she wish to be cremated. Instead Mrs Finlow expressed a wish that she be buried at a cemetery at Wildes Meadow or Burrawang, where a number of her paternal family members were buried.

35 Mrs Bilinsky was unshaken in cross-examination and I accept her evidence. I therefore regard the fact that the alleged will provides for cremation to be suspicious and as casting doubt on the genuineness of the document. As will be seen later in these reasons, the time and circumstances in which the document was produced by the plaintiff probably explain why this provision was inserted in the document. The instruction for cremation is also important when considering the plaintiff’s conduct after Mrs Finlow’s death.

Making Photocopies

36 The plaintiff said that after the will was signed, Mrs Finlow asked him to make some photocopies of the will and to give one copy to Les, one to Stephan and to keep two for himself. Mr Marshall gave evidence that he asked for a copy of the will and that Mrs Finlow said that she would arrange that with the plaintiff.

37 The plaintiff said that the day after the will was signed, that is, on Monday 21 May 1990, he went to Parramatta where he obtained four copies of the document which on his return he gave to his mother. She gave one copy to her husband, one to Mr Marshall, and two to him. He then said that he saw his mother put the original will along with other important papers in an A4 document folder which was sealed and waterproof. She then put that document folder at the bottom of a freezer chest where, according to him, she usually kept important papers.

38 The three photocopies allegedly given to the plaintiff and to Mr Marshall were produced at the hearing. I do not understand why Mrs Finlow should have thought it necessary to give a copy of the will to Mr Marshall, nor indeed why he wanted a copy of the will. Nor do I understand why she should have wanted to give two copies of the will, rather than one, to the plaintiff. However, these are not reasons for not accepting the plaintiff or Mr Marshall.

The Freezer Chest

39 Both the plaintiff and Mr Marshall said that Mrs Finlow kept important documents including the wills of both herself and her husband in the freezer chest and that they saw those documents there on a number of occasions. The freezer chest, they said, was in an eating area immediately adjacent to the kitchen. Mr Marshall said that the sealed folder in the freezer also contained home extension plans upon which he worked with Mr Finlow.

40 The defendant denied that her mother kept any documents in the freezer. The defendant’s daughter, Samantha Morton, swore an affidavit in which she referred to her visits to the house in the mid 1980s and in 1990. She said that at both visits the freezer was not used but had been placed in the third bedroom. She said that during her visit in January 1990, she asked her grandmother what the freezer was doing in the third bedroom if she was not using it and was told that it was used as a tabletop. The refrigerator also had a freezer compartment. Ms Samantha Morton also said that she looked into the freezer and there were no documents in it. Ms Samantha Morton was resident in London and was not available to be cross-examined on her affidavit. That affects the weight which I must give to her evidence. However her evidence is corroborated by Mrs Bilinsky. Mrs Bilinsky said that she was in the home on many occasions when both the freezer and the refrigerator were opened by Mr and Mrs Finlow or by herself. On no occasion did she see a filing system in place in either. Mrs Finlow never told her that she kept personal documents in a freezer. Mrs Bilinsky said that the freezer was in the kitchen when one of her sons started school at King’s in 1988 but it was later moved after Mr and Mrs Finlow stopped buying goods in bulk. By 1993, it had been moved to the bedroom and was not in use, but was covered with a cloth and photos of the Bilinsky children. I accept this evidence. I think it is improbable that Mrs Finlow placed the original will in a sealed plastic folder and put it in a freezer in 1990. Whether she did so or not, I am satisfied that by January 1996 the freezer was not located in the eating area near the kitchen and that it did not contain a folder containing important documents of the Finlows.

Mrs Finlow Considers Making a Will

41 After the Finlows moved to a nursing home, amongst the papers found in the house were documents relating to how to make a will. One such document was a letter dated 15 August 1991 from the Salvation Army addressed to Mr and Mrs Finlow which said in part:

“I am in receipt of your communication seeking information with regards ‘Making a Will’.”

The Salvation Army enclosed information about how to make a will and encouraged the Finlows to do so. Also included amongst the papers was a cutout from the Australian Womens Weekly magazine of 23 April 1991 on how to make a will, and other newspaper cuttings on the same subject where the dates had been cut off. There was also an uncompleted law stationer’s form for the making of a will.

42 The communication from the Salvation Army is of particular significance. Whilst it is quite possible that Mrs Finlow, having made her will, might wish to change it, I do not understand why she or Mr Finlow would be seeking information from the Salvation Army with regard to making a will in 1991. If the plaintiff’s version of events is correct, only the previous year Mrs Finlow had considered that she knew perfectly well how to make a will and had done so. It is possible that between May 1990 and August 1991 she learned that gifts to an attesting witness were invalid and that for that reason she was concerned that the will she had already made may be ineffectual and hence sought more information on the topic. But if that were so, I would expect her to have taken a step to ensure that she made an effective gift to her husband by making a will which he did not attest. However one looks at it, the Finlows’ request to the Salvation Army for information on how to make a will in August 1991, is inconsistent with the plaintiff’s and Mr Marshall’s versions of events in May 1990.

43 In March 1994 Mr and Mrs Finlow visited Mr Bilinsky at his office in Bowral. He is a solicitor. They asked to see him briefly about their wills. The conversation dealt only with preliminary matters. The Finlows expressed a wish to make provision for the Bilinsky children in their wills. Mr Bilinsky said that they would need to let him have specific instructions as to how they wished to dispose of their estate; they would need to consider who should be executors of their wills; and in relation to any gifts to the Bilinsky children Mr Bilinsky would need to send them to another solicitor for independent advice. He gave them other advice as to the information he would need to prepare their wills. Mrs Finlow said that they would get the information together and telephone him to make an appointment to come and see him about their wills.

44 However no further contact was made by the Finlows with Mr Bilinsky. He later asked them on one or two occasions whether they had given the matter of their wills further thought and they said they were still working on it and would get in touch with him when they were ready to come down. Mr Bilinsky said that the Finlows did not tell him that they had already made wills, nor did they imply that they had. His impression when they spoke to him in early 1994 was that they had no wills.

45 I accept this evidence. Mr Bilinsky knew neither the plaintiff nor the defendant. There is no reason to doubt his evidence. Although it is possible that Mrs Finlow may have already made a will and simply not disclosed that fact when she consulted Mr Bilinsky in 1994 with a view to changing her will, or making a different will, I think it is unlikely that she would omit to mention the fact that she had made a will. I am satisfied that she did not make any mention of that alleged fact.

46 If matters had rested there, although there would be grounds for suspicion about the genuineness of the documents, unless scientific evidence showed that the copies were forgeries, I doubt that there would be sufficient ground to reject the sworn evidence of the plaintiff and Mr Marshall. They of course were the only surviving witnesses to the alleged execution of the will. A question which would then have arisen would be whether in the absence of production of the original will, it should be presumed that the original was destroyed by Mrs Finlow with the intention of revoking it.

Events of 5 January, 1996: Background

47 On the plaintiff’s case that question does not arise because of evidence which the plaintiff and Mr Marshall gave about events on 5th January 1996. 5th January 1996 was the day on which Mr and Mrs Finlow left their home and were admitted to the Lottie Stewart Hospital. By this date the plaintiff resided in Tewantin, which is near Noosa in Queensland. The defendant at that time resided in Lavender Bay in Sydney, although she said that she was staying at the Finlows’ house in Carlingford at the time.

48 In considering how the evidence about the events of 5 January 1996 unfolded it is important to take account of the dates on which affidavits were filed and the dates upon which documents from the Lottie Stewart Hospital and the community health service were produced on subpoena. The first affidavits of the plaintiff and of Mr Marshall were sworn on 5 April 2003. Mr and Mrs Morton responded to those affidavits on 24 June 2003. On 1 August 2003 documents were produced on subpoena by the Lottie Stewart Hospital. Affidavits in reply were sworn by Mr Marshall on 24 October 2003 and by Mr Boland on 16 and 19 December 2003. The defendant filed a further affidavit correcting her affidavit of 24 June 2003 on 17 December 2003. It was not until 16 December 2003 that documents from the Hills Community Health Service were produced on subpoena. These documents, and the evidence of the community nurse who attended to Mr Finlow on 5 January 1996, are the best evidence of Mr Finlow’s condition on that day and of the arrangements for Mr and Mrs Finlow to be admitted to the Lottie Stewart Hospital. Those notes, I infer, were not available to the plaintiff, the defendant or Mr Marshall at the time they swore their affidavits. It is plain from those notes and from the evidence of the community nurse, Sr Burrows, which I accept, that the evidence of each of the plaintiff, the defendant and Mr Marshall about the events of that day must be rejected.

49 By the beginning of January 1996 Mrs Finlow, who was then 85, was suffering from severe dementia. She had been able to keep living in the house as Mr Finlow did most of the housework and domestic chores. However in late 1995 Mr Finlow was diagnosed with lung cancer. His condition was terminal. In December 1995 he refused assistance from the community health service. Nonetheless, at the request of the defendant, a nurse from the community health service agreed to make regular checks on the Finlows.

The Plaintiff’s Version of Those Events

50 The plaintiff said that on 2 or 3 January, but probably on 3 January 1996, he telephoned Mr Finlow and Mr Finlow asked him to meet Mr Marshall outside the public school at Manly at about 7.00 am on the 5th so as to collect Mr Marshall so that together they would meet Mr Finlow at his house on the 5th. Mr Finlow told the plaintiff that he had concluded that he would like to go into a nursing home with Mrs Finlow and he wanted to see Mr Marshall and the plaintiff to arrange his affairs. Mr Finlow did not explain at that stage why he needed Mr Marshall’s involvement. Mr Finlow said that he thought he would be going to a nursing home, he wanted to go to a nursing home and hospital combined, he hoped it would be Lottie Stewart, but he wasn’t sure, and he was trying to make arrangements. He wanted to see Mr Marshall and the plaintiff to arrange his affairs.

51 The plaintiff did not telephone Mr Marshall to confirm these arrangements. However he picked up Mr Marshall outside the Manly school at about 7.00am on the morning of 5 January. They arrived at the Carlingford house after 8.00am. They stayed for half to three quarters of an hour.

52 They spoke to Mr Finlow. He was in his pyjamas sitting in a chair in the loungeroom. He asked them both to be quiet so as not to disturb Mrs Finlow. Mr Finlow repeated what he had previously told the plaintiff about the arrangements which he hoped would be made to admit them both to a nursing home, but no arrangements had been made. Mr Finlow said that he hoped it would be Lottie’s because it was only ten minutes away. Mr Finlow told the plaintiff that he wanted the plaintiff to look after all their financial affairs and their administration such as bills and accounts. Mr Finlow showed the plaintiff where all the documents and the A4 folder in the freezer were. He asked Mr Marshall to look after the house and to make sure the house and the garden were properly cared for. Mr Finlow walked from the chair to the freezer, a distance of about ten metres or fifteen paces. The freezer was in the eating area adjacent to the kitchen. Mr Finlow pointed out to the plaintiff where the A4 folder was and asked the plaintiff to get it out, which he did. He asked the plaintiff to open the folder (which was zipped) and to take out all of the documents and check that they were there. The plaintiff did so. Mr Finlow said he wanted to make sure that two wills were still there. The plaintiff saw that the folder contained the wills of Mr and Mrs Finlow. Mr Finlow then returned the A4 folder by dropping it back into the bottom of the freezer.

53 After this discussion, Mr Marshall and the plaintiff left the house. The plaintiff dropped Mr Marshall at Carlingford railway station. They arranged to meet each other at 10.00pm that night at Carlingford railway station to go back to the house. The plaintiff went to a motel where he had a sleep. He met Mr Marshall that night at Carlingford railway station. The train was late and they got to the Carlingford home at about 10.30pm. They found that the home had been searched and rifled. The contents of every drawer and cupboard had been disturbed. It did not appear that any household goods were missing, but the A4 document folder together with all the documents in it had gone from the bottom of the freezer. An expandable document file and other records which were normally kept in the kitchen and bedroom had also gone. Mr Marshall suggested that the plaintiff should call the police. The plaintiff did not do so. He did not want to say the house had been burgled. The plaintiff had intended to stay a couple of nights in Sydney, apparently in the house. However, after discovering the burglary he just wanted to get Mr Marshall home. Mr Marshall lived in Manly. They drove along Pennant Hills Road to the Pacific Highway. That is not a direct route to Manly.

54 As the evidence ultimately emerged, the plaintiff said that before leaving the house he tried to ring the defendant from his mother’s bedroom at Carlingford. He rang her number in Lavender Bay but there was no answer. After they left the house they stopped off at a public phone box and telephoned Mr Morton. Mr Morton at this time was in Melbourne staying with his parents. In his second affidavit, although not in his first affidavit, the plaintiff said that he rang Mr Morton in Melbourne. Mr Morton said words to the effect “Rhana and I have removed all papers and documents after searching the house including Phyllis and Les Finlow’s will from the freezer”. A short time later and further down the road he decided to ring the defendant. He stopped at another telephone box. Mr Marshall listened in to the call. The defendant said to him:

“Ian and I have taken all of the documents of Mum’s from her house including the document folder in the freezer. The document folder in the freezer contained many documents including original wills of Mum’s and Les Finlow. Bad luck Michael. The wills will not see the light of day again.”

55 The plaintiff did not take Mr Marshall home to Manly. He dropped him off somewhere on the Pacific Highway and drove back to Tewantin. According to Mr Marshall, the plaintiff told Mr Marshall that he felt it would be better for Mr Marshall to stay out of his parents affairs from then on.

56 Neither Mr Marshall nor the plaintiff reported the theft to the police. Nor did they attempt to see Mr Finlow to tell him about the theft, notwithstanding that Mr Finlow had only entrusted the administration of his and his wife’s affairs to them that very day.

57 This is a remarkable story. It is corroborated in every detail by Mr Marshall. However I am comfortably satisfied that it is a fabrication, notwithstanding that in an important respect it is supported by the evidence of the defendant. In answer to the first affidavits sworn by the plaintiff and Mr Marshall the defendant originally said that on 2 January 1996, after Mr Finlow’s condition worsened, she and the community nurses made arrangements for Mr and Mrs Finlow to be admitted to Lottie Stewart Hospital. She said that at this time she was staying in the house at Carlingford. Initially she said that at about 9.00am on 5 January 1996 an ambulance arrived to take Mr and Mrs Finlow to Lottie Stewart Hospital. She said that she was with Mr and Mrs Finlow at the home and she followed the ambulance when it took Mr and Mrs Finlow to hospital at about 9.00am, at which time she locked up the house. She recalled it was early because she had to get Mr and Mrs Finlow ready straight after breakfast. She got back late in the afternoon and was at the house for the whole night and at no time did the plaintiff or Mr Marshall go to the house. Although this evidence contradicts that of the plaintiff and Mr Marshall, it supports their evidence in two respects. First, nothing is said about Mr Finlow’s physical condition which might make it improbable or impossible for him to have discussed matters with Mr Marshall and the plaintiff as they deposed. Secondly, it confirmed that prior arrangements had been made to take Mr and Mrs Finlow to Lottie Stewart Hospital.

58 When she swore her second affidavit, on 17 December 2003, the defendant had been shown documents produced by Lottie Stewart Hospital. Those documents show that Mr and Mrs Finlow were admitted to the Lottie Stewart Hospital at 10.00pm, not at 9.00 am. In her affidavit of 17 December the defendant described the events of the morning as follows:

“On the morning of 5 January 1996 I gave Mum and Les their usual breakfast which consisted of orange juice, fruit, tea/coffee and toast. I also gave them their pills. After breakfast as was my usual practice at that time, I gave Les a hot wash and fresh pyjamas and attended to his toilet needs. ….”

Evidence of Sister Burrows

59 None of this evidence is correct. In fact, Mr Finlow was seen on the morning of 5 January 1996 by Sr Burrows of the Hills Community Health Service. She arrived at about 9.00 or 10.00 in the morning. Nobody was there except Mr and Mrs Finlow. Mr Finlow was in bed. His bedlinen and pyjamas were soiled and wet, meaning that he had double incontinence by both bowel and bladder. She asked Mr Finlow how long he had been there, or how long he had been like this, and he said “a couple of days”. From her observation it seemed he had been in that condition for at least twenty four hours. That is to say, he had been lying on the bed, and incontinent and unable to move for at least twenty four hours. Sr Burrows telephoned another nurse who arrived an hour or so later. With the assistance of both nurses they were able to shuffle Mr Finlow to the bathroom. The bath was full of emptied ashtrays and cigarette butts. They were able to shower him and change the bed linen and put him in fresh pyjamas. He was unable to walk by himself, even with the assistance of a frame. It took the two nurses to move him back to the bed. Mrs Finlow at this time had dementia and was found wandering in the garden.

60 I was impressed with Sr Burrows’ evidence. She obviously had a clear recollection of the events in question. Her evidence was supported by notes which were prepared within a couple of days of the event. It was suggested in submissions that she was wholly dependent for her recollection upon her notes. I do not think that that is so, or that that is a fair reflection of the evidence. It is clear from her evidence that she has a recollection independent of her notes, as appears, for example, from her description of she and the accompanying nurse moving Mr Finlow to the bathroom. Where in her cross-examination she accepted that she had no independent recollection of the events except the notes that she had made three days later, she did so in response to questions about having made no notes of what Mrs Morton, the defendant, had said to her. She knew neither the plaintiff nor the defendant and had no reason to gild the truth. Her evidence was careful and measured. She was a conscientious witness who very properly refused to swear an affidavit prepared by solicitors in the mistaken belief that it was necessary to set out conversations in the first person and in direct speech.

61 In cross-examination of Sr Burrows it was suggested that her evidence about Mr Finlow’s inability to walk by himself was inconsistent with notes made at the Lottie Stewart Hospital on his admission there at 10.00 pm on 5 January. I do not think those notes are inconsistent with Sr Burrows evidence. The relevant note taken at 10.00 pm recorded “can walk (just) holding on to furniture but required assistance of two nurses this am for transfers”. I accept Sr Burrows evidence that after he got to Lottie Stewart Hospital and had effective pain control his condition was probably better than it had been earlier when he had no pain control.

62 Sr Burrows was definite in her opinion that Mr Finlow had not been able to get out of bed that morning.

63 Mr Finlow died a week later in Lottie Stewart Hospital.

64 Sr Burrows also explained how it came to be that Mr and Mrs Finlow were admitted to Lottie Stewart Hospital. She said that at the time she took Mr Finlow back to bed there had been no plans to have him and Mrs Finlow admitted to hospital. No hospital had been designated. She told Mr Finlow that he couldn’t go on like this and he nodded or said “yes”. At about 4.00 pm Sr Burrows started making phone calls to try and place Mr and Mrs Finlow. She made several phone calls to Lottie Stewart Hospital. She had not made any pre-arrangements with Lottie Stewart Hospital for an admission to the hospital. It took three to five calls to get them in. It wasn’t until about 5.00pm that Lottie Stewart Hospital rang back to say that they had two beds. She had never previously discussed with Mr Finlow his being admitted to Lottie Stewart. As she said, “I was just lucky to get them in there.” Sr Burrows then telephoned Mrs Morton. Mrs Morton arrived. The ambulance arrived at about 9.00pm.

Findings About the Events of 5 January, 1996

65 Accepting this evidence, as I do, it is impossible for the events of 5 January to have occurred as they were described by any of the plaintiff, Mr Marshall or the defendant. Mr Finlow could not have been sitting in a loungechair. He could not have been having the discussions which Mr Marshall and the plaintiff deposed to about wanting them to take over the administration of affairs or look after the house and garden. He could not have walked to the freezer or back again. He was at that time lying in bed, incontinent, and unable to move.

66 Sr Burrows’ evidence also shows that the admission of Mr and Mrs Finlow into the Lottie Stewart Hospital on 5 January 1996 was not the result of any prior arrangement. I reject the evidence of both the plaintiff and the defendant that such prior arrangements had been made. I reject Mr Marshall’s evidence that Mr Finlow spoke of matters “while we are in hospital” and that he said an ambulance was coming.

67 There are other features of the plaintiff’s version of events of 5 January 1996 which show the story is a fabrication. The first is why Mr Finlow should have asked Mr Marshall and the plaintiff to visit the house. It is puzzling enough that Mr Marshall was approached at all to help look after the house and garden when, according to the story, Mr Finlow was aware that Mr Marshall did not have a car and lived in Manly. It was not as if he had been a close friend, even on his version of his relationship with the Finlows. Nothing was said by Mr Finlow about what he wanted Mr Marshall to do that required Mr Marshall’s presence. There is also no reason why the plaintiff should have been asked to travel from Queensland for the brief discussion which he described he had with Mr Finlow.

68 It was submitted by the defendant that the arrangements made for the plaintiff to collect Mr Marshall to take him to the Carlingford home were implausible. It is certainly surprising that the plaintiff should have agreed to collect Mr Marshall, not at his house, but outside the Manly public school at 7.00 am without having contacted Mr Marshall himself to confirm the arrangements. Both Mr Marshall and the plaintiff said there had been no such contact. It is also improbable, having regard to Sr Burrows’ description of Mr Finlow’s physical condition on 5 January, that he would have been up to making the arrangements on 2, 3 or 4 January with the plaintiff and Mr Marshall as they described. It was submitted for the defendant that the evidence of the plaintiff and Mr Marshall about the arrangements for collection was internally contradictory because according to Mr Marshall it was he who suggested to Mr Finlow on 4 January 1996 that he be picked up at Victoria Street at the Manly public school, whereas according to the plaintiff Mr Finlow asked him on 3 January to pick Mr Marshall up outside the Manly public school. By itself this discrepancy of dates would have no great significance. However the whole episode of Mr Finlow arranging the meeting is implausible.

69 Secondly, for the reasons I have previously given, I am satisfied that the freezer chest was not, in 1996, in the location which both the plaintiff and Mr Marshall described. It was empty, covered with a cloth and with photographs, and located in a bedroom. Therefore the story about Mr Finlow asking the plaintiff to check the documents in the freezer chest, and his confirming that the wills were there, is untrue, quite apart from the fact that Mr Finlow was in no condition to participate in such an episode.

70 Thirdly, the arrangements allegedly made by the plaintiff and Mr Marshall to meet again at the Finlows’ house after 10.00 pm that evening would be bizarre. On the plaintiff’s evidence he did not know that his mother and Mr Finlow would be admitted to a hospital or a nursing home at the time he made those arrangements with Mr Marshall. How likely is it that they would have agreed to go back to the home of an old, frail and sick couple late at night? There is nothing that could be achieved by their going back to the house at 10.00 pm that they could not have achieved that morning.

71 Fourthly, the evidence which the plaintiff and Mr Marshall both gave about the alleged admissions of the defendant’s husband, Mr Morton, changed as further evidence about Mr Morton’s position became available to them. In his first affidavit the plaintiff swore that he had telephoned Mr Morton, who told him that he and Rhana had removed all the papers and documents after searching the house, including the wills. The plaintiff did not say where the conversation occurred, although the inference from the affidavit would be that it occurred in the house. In Mr Marshall’s first affidavit he made it clear that the plaintiff telephoned Mr Morton from the house. Mr Marshall also referred to a second telephone call to the defendant which he said he overheard by putting his ear to the telephone earpiece. Although he did not say so expressly, the inference from his first affidavit was that that call was also made from the house.

72 It emerged from affidavits filed by the defendant that on the day in question Mr Morton was in Melbourne. He was not with his wife at their unit at Lavender Bay. He had been admitted to hospital in Melbourne on 23 December and did not return to Sydney until 12 January. After the plaintiff’s first affidavit was filed, the defendant filed an affidavit of a Mr Allen who deposed to having had lunch with Mr Morton in Melbourne on 5 January and who swore he was with Mr Morton from 12.30 pm to 5.00 pm on that day. He had a record of the appointment in his diary. Mr Allen was not required for cross-examination. Mr Morton was also able to attach a bank statement showing a purchase which he made of petrol using his EFTPOS card in Kew on 5 January 1996. Kew is a suburb of Melbourne.

73 In his affidavit in reply of 19 December 2003, the plaintiff said that he placed the telephone call to Mr Morton to the home of his parents in East Ivanhoe on a particular telephone number. In his affidavit in reply, Mr Marshall added to the conversation about which he had given evidence in his first affidavit. In his first affidavit he said that the plaintiff made a telephone call from the house. The plaintiff then told him that Mr Morton had told the plaintiff that he (Mr Morton) and Rhana (the defendant) had searched the house and removed all the paperwork including the plastic document holder containing the wills and other papers from the freezer. In his second affidavit, Mr Marshall said that after Mr Boland had made a telephone call in the house he turned to him and said “we have to leave”. He then said that they left the house and after twenty minutes the plaintiff stopped the car at a telephone booth and when he returned told him that he had just spoken to Mr Morton in Melbourne, and that Mr Morton had told him that he (Mr Morton) and Rhana had searched the house and removed all paperwork etc.

74 In his oral evidence at the hearing the plaintiff gave evidence to the same effect as in Mr Marshall’s second affidavit.

75 Both the defendant and Mr Morton denied taking the documents and denied the conversations which the plaintiff and Mr Marshall alleged occurred. I accept those denials.

76 How did the plaintiff know that Mr Morton in Melbourne? After all, on his first version of events he had spoken to Mr Morton before he spoke to the defendant so he did not learn it from her. When pressed with this in cross-examination, he said that he had learned of it through Mr Finlow. He had not previously given this evidence in either of his affidavits or in the earlier part of his cross-examination when asked about conversations which he had with Mr Finlow. He did volunteer that he had told his solicitor about Mr Finlow having told him that Mr Morton was in Melbourne. Mr Poole, the plaintiff’s solicitor, was called. It was clear from his evidence that no information provided to him by the plaintiff in relation to the events of 5 January 1996 had been excluded from the affidavits.

77 What this shows is not only that the evidence which the plaintiff gave about the alleged confession by Mr Morton was false, but that Mr Marshall was prepared to tailor his evidence to accommodate a new version of events, namely that the plaintiff telephoned Mr Morton in Melbourne. This change involved not only the addition of evidence that Mr Morton was in Melbourne, but a change to where the conversations occurred so as to show that they occurred from an untraceable public telephone box.

78 The next odd thing about the alleged events of 5 January 1996 is how the plaintiff and Mr Marshall responded to the theft. The plaintiff had just been charged by Mr Finlow with the task of looking after his affairs. According to him and Mr Marshall, Mr Finlow went to the trouble of having the documents got out of the document folder to check that everything was there and in order. On the very same day they found out that the place had been burgled. They did not call the police. They did not stay in the house. They did not attempt to visit Mr or Mrs Finlow in Lottie Stewart Hospital to tell them what had happened. They did not see a solicitor. They did not make any later complaint to the defendant or to Mr Morton. They did not write to the defendant, nor to Mr Morton, nor did they telephone them, to ask them to return the documents. Instead the plaintiff drove straight back to Tewantin.

79 The plaintiff said that he wanted to speak to a Vietnam Veterans counsellor straight away. There is no corroborative evidence that he did so.

80 I am satisfied that the evidence of the plaintiff and Mr Marshall about the events of 5 January 1996 is untrue. More, and notwithstanding the seriousness of the matter, I am satisfied that the story which they put forward was a fabrication. The only motive for the fabrication that I can see is to provide an explanation as to why the original will was not found after Mrs Finlow’s admission to Lottie Stewart Hospital, so as to rebut a presumption that it had been destroyed with the intention that it be revoked. The rejection of this elaborate story reflects on their credibility in relation to the alleged making of the will in May 1990. It is possible that Mrs Finlow made a will in the circumstances which Mr Marshall and the plaintiff described in May 1990 and that they made up a story about the theft of the will in January 1996, but that scenario is implausible.

Mr Finlow’s Estate: Correspondence from R L Whyburn & Associates

81 I turn then to the conduct of the plaintiff after 5 January 1996. Mr Finlow died on 12 January 1996. According to the plaintiff’s evidence, he was aware that Mr Finlow’s will had just been stolen. However Mr Finlow had little personal estate and he held a half interest in the Carlingford property as a joint tenant. His interest in that property passed to his wife by survivorship. Mrs Finlow was incapable of managing her own affairs. On 29 February 1996 a Mr Hayes, an accountant, wrote to Mr and Mrs Morton on behalf of the plaintiff advising that the plaintiff had requested that any further contact with him in respect of Mrs Finlow’s financial affairs be made through Mr Hayes. The plaintiff preferred not to be contacted directly.

82 By 14 March 1996 the plaintiff had consulted a firm of solicitors in Sydney, R L Whyburn & Associates. They wrote to the defendant in relation to the estate of Mr Finlow and the affairs of Mrs Finlow. In relation to the estate of Mr Finlow they said that it appeared that the assets in the estate were minimal and “it may be that they can be transferred without the necessity to apply for letters of administration”. Clearly the plaintiff had not informed his solicitors that Mr Finlow had died leaving a will.

83 Messrs R L Whyburn & Associates wrote again to the defendant on 25 March 1996. They advised they had been instructed by the plaintiff to act on behalf of the estate of Mr Finlow. They advised that there should be no need to apply for letters of administration due to the absence of a will as the real estate was held in joint names and could be transferred to Mrs Finlow by survivorship. The plaintiff admitted that he had not told his solicitor that he had seen a will of Mr Finlow, but that it was missing after the home had been ransacked. His only explanation was that he regarded the affair as very sordid and messy and did not want to involve other people in it and he thought that as the original will was gone that was the end of it. He said that the main thing was to look after his mother’s affairs. I do not believe that this was the reason the plaintiff did not tell his solicitor that Mr Finlow had a will which had been stolen. I am satisfied that he instructed his solicitor that Mr Finlow had not left a will.

Orders

148 For these reasons I order that the claims for relief in the amended statement of claim be dismissed. I will hear counsel on the question of costs. I direct that the exhibits not be returned to the parties until further order.

******

Last Modified: 07/16/2007