Karwala v Skrzypczak; In the Estate of Ratajczak

[2006] NSWSC 203

CITATION:	Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203
HEARING DATE(S):	14-17, 20-23 and 27-28 February 2006
JUDGMENT DATE :	29 March 2006
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Order of grant of administration with copy of Polish will annexed.
CATCHWORDS:	WILLS - contest between will made in 1961 and wills made in 1992 and 1995 - claimed agreement to leave property by will in exchange for assistance in the home - 1992 will leaving everything to person giving assistance - subsequent wills made on same day in 1995 in English and Polish also giving property to that person - questions of execution and testamentary capacity in respect of 1992 and 1995 documents - subsidiary issues of undue influence and lack of knowledge and approval - original of 1995 Polish will not produced - loss explained - no presumption of revocation
LEGISLATION CITED:	Wills Probate and Administration Act 1898
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Barry v Butlin (1838) 2 Moo PC 480. Fulton v Andrew (1875) LR 7 HC 448; Nock v Austin (1918) 25 CLR 519 Worth v Clasohm (1952) 86 CLR 43
PARTIES:	Maria Karwala (Plaintiff) Jadwiga Skrzypczak (Defendant)
FILE NUMBER(S):	SC 100898 of 2003
COUNSEL:	Mr I N Asuzu (Plaintiff) Mr S Galitsky (Defendant)
SOLICITORS:	Not applicable (Plaintiff) G.A. Kinsey (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

WEDNESDAY 29 MARCH 2006.

100898/03 MARIA KARWALA V JADWIGA SKRZYPCZAK IN THE ESTATE OF WLADYSLAW RATAJCZAK DECEASED

JUDGMENT

Outline

1 Mr Wladyslaw Ratajczak (the deceased) died on 8 May 2002. The question is which of four propounded documents should be admitted to probate. The plaintiff, Mrs Maria Karwala, propounds a will dated 7 October 1961. The defendant, Mrs Skrzypczak, by cross-claim propounds three documents in the alternative. From the most recent in time these are a will written in Polish dated 24 November 1995, a will written in English on the same date, but prior to the Polish will, and a will written in English on 3 December 1992. A claim under s18A of the Wills Probate and Administration Act 1898 relating to the first document was pleaded but not pursued.

Preliminary Facts – content of wills

2 The 1961 will appointed Jozef Morzak and Czeslaw Mochalski as executors and gave his whole estate to his sisters, Zofia Kubicka and Maria Ratajczak, in equal shares. They lived in Poland. The executors named both pre-deceased the deceased. Maria Ratajczak also pre-deceased her brother. The plaintiff, Mrs Karwala, seeks a grant as attorney for her mother, Zofia. While the claim is for probate of the 1961 will, any grant made would have to be of letters of administration with the will annexed to Mrs Karwala as attorney for her mother, a beneficiary in the estate. It would appear that there would be an intestacy as to one half share but that need not be considered. The defendant did not admit the validity of the 1961 will and thus did not admit the plaintiff’s mother had an interest. Apart from the fact that lack of interest was not pleaded, if none of the three later documents were valid as wills, then even if the 1961 were invalid, the plaintiff’s mother would have an interest on intestacy. Mrs Karwala came to Australia in 1999 and thus was not able to give any evidence about the deceased in 1992 and 1995.

3 The 1961 will on its face appears to be in order, duly executed by the deceased. A statutory declaration dated at the time of the execution as to its translation by the declarant into Polish was admitted into evidence. It is clear that a grant in common form should be made if this document is the last will. In the absence of any evidence of attesting witnesses the evidence is I think insufficient for a grant in solemn form and in the circumstances that will not matter.

4 The will dated 3 December 1992 gave the whole estate of the deceased to Mrs Skrzypczak and appointed her sole executrix. On its face it was signed by the deceased and witnessed by two persons, Mr Stefan Beirut and Mr Piotr Rystwej.

5 The will dated 24 November 1995 written in English appoints Mrs Skrzypczak as executor and gives the whole of the estate to her. It is not in precisely the same words as the 1992 will but its effect is precisely the same. On its face it is signed by the deceased in the presence of two witnesses namely, Mr Jan Sadjak and Mrs Anna Tyczynski. The Polish will on its face was also signed by the deceased and witnessed by Mrs Tyczynski and Mr Sadjak. A translation of this document into English is in evidence and is as follows:

In consideration of dedicated care provided to me over the last three years I, Wladyslaw Ratajczak of 11 Martin Street Lidcombe, being of sound mind, hereby decide to bequest, in the event of my death, all my real estate, including house contents as well as my savings to Jadwiga Skrzypczak of 129/16 Urana Street, Villawood. This is my last will and testament confirmed by my own signature.

There follows what purports to be the signature of the deceased and signatures of Mrs Tyczynski and Mr Sadjak.

The Issue

6 As I have said the 1961 will should be admitted to probate if none of the other documents are admitted. It follows that the true issues in this case arise on the cross-claim, in which the alternative grants in respect of the three documents referred to are made.

7 So far as the 1992 will is concerned the defences are lack of due execution, lack of testamentary capacity, fraud, undue influence, and what is called “suspicious circumstances”. So far as the first defence is concerned, that was pleaded in paragraph 3 of the final defence to the cross-claim as follows:

3 . The cross-defendant says that the document dated 3 December 1992 alleged by the cross-claimant to be the last will of the deceased was not duly executed on that date and the deceased signature may have been forged.
PARTICULARS
(a) The deceased did not sign a will on that date or sign in the joint presence of the attesting witnesses, as he had not known the cross-claimant that well in 1992 to give her his property in 1992, so as to say it was a Deed of Gift not a will.
(b) The deceased signature on the document dated 3 December 1992 may have been obtained after that date, as that will was a later invention by the cross-claimant.
(c) The cross-claimant had barely met the deceased and had not been accepted and/or approved as a carer/housemaid by the deceased until 1993.
The particulars could not be said to embrace a claim for forgery but I allowed the matter to proceed on the basis that forgery was claimed. The defence of fraud and the particulars was pleaded as follows:

5. The cross-defendant says that execution of the alleged 1992 will was obtained by fraud of cross-claimant.


(a) The cross-claimant gave instructions to the deceased to have the 1992 will prepared for him under which, she was appointed executor and bequeathed his estate to the cross-claimant.

(b) The cross-claimant had prepared the said 1992 will, when the deceased would not have known and approved the content of the document he was signing.

(c) The cross-claimant had induced the deceased to sign the said alleged 1992 by falsely and fraudulently representing that it she was caring for the deceased and should be preferred to his family in Poland.

(d) The said will was not read to him, as he would not have understand and approve the content due to ill health, loss of memory, alcoholism and dementia.

The particulars under the defence of suspicious circumstances were as follows:

7. The cross-defendant says that the execution of the alleged 1992 will was obtained by suspicious circumstance of the cross-claimant.

PARTICULARS

(a) The deceased was seventy six (76) years of age as he lacked the knowledge of. will making power and would not have approved the content of such document;

(b) The deceased for some years suffered poor health, loss and/or lapses of memory, so as to conclude that 1992 will was a later invention, since there was no receipt for attendance at drafting solicitor or registration in the will Register as at that date;

(c) The deceased had been in the false care of the cross-claimant who acted as his housekeeper and manipulated his desire to leave his property to his two (2) sisters in Poland;

(d) The cross-claimant took advantage of the extreme old age and poor health of the deceased so as to dominate, overbear and over burden him;

(e) The cross-claimant misrepresented to the deceased that his family in Poland had abandoned him;

(f) The cross-claimant had falsely persuaded the deceased that she was the only person to whom he owed any duty, so as to rejecting his two sisters and/or family in Poland;

(g) The cross-claimant gave instructions for the preparation of the alleged will;

(h) The influence of the cross-claimant over the deceased was such that the deceased was not a free agent and his execution of the alleged will was not his own volition.

8 In respect of the two documents signed on 24 November 1995 the defences cover both. They are lack of due execution, lack of testamentary capacity, fraud, undue influence and suspicious circumstances, the particulars being similar to those given for the 1992 will.

9 The lack of due execution is pleaded as follows:

8. The cross-defendant says that the document dated 24 November 1995/Polish wills alleged by the cross-claimant to be the last will of the deceased was not duly executed on that date and the deceased signature may have been forged.

PARTICULARS
(a) The deceased did not sign a will on that date in the joint presence: of two attesting witnesses, as one of the attesting witness was not present at the signing of the said wills, did not know the deceased, did not write or sign the Polish will.
(b) The deceased signature on the document dated 24 November 1995/Polish wills may not have been witnessed at that date, as the witnesses were never present at the signing of the wills propounded by the cross-claimant.
(c) The cross-claimant had only been visiting the deceased once per fortnight as opposed to being a resident housekeeper or maid.
(d) The attesting witnesses did not see the deceased sign, as they were not both present to witness the will at the same time and place.

10 It was not until this document was filed on the final day that the allegation the signatures on the 1995 documents may have been forged appeared. Nevertheless the case was tried on the understanding that in some way it was intended to raise forgery in respect of these wills. The defence was raised in earlier documents but not raised in later defences to cross-claim filed on 8 July 2005, 29 July 2005 and 19 September 2005.

11 As appears in the record of proceedings I suggested to counsel for Mrs Karwala on many occasions during the trial, that he may wish to amend to raise the defence of want of knowledge and approval. Towards the end of the trial some efforts were made to do so with documents which were not filed because they had substantial other defects. Generally speaking these had the result of jumbling up the particulars of claim or raising issues referred to as a delegation of will making. In the long run I really gave up and announced I would deal with the action on the basis that the defence of want of knowledge and approval was raised in respect of the three wills the subject of the cross-claim. “Suspicious circumstances” as eventually pleaded may be thought to raise much the same questions: it is however not a defence, the matters raised being relevant, if at all to the question of knowledge and approval: See Nock v Austin (1918) 25 CLR 519 at 528.

12 It is apparent that the defence to cross-claim was not well pleaded but the case was allowed to run on the basis the defences were raised. The s18A claim by the cross-claimant in respect of the Polish will was abandoned. The only claim made for that document was this it was a valid will.

Facts

13 The deceased was born in Poland on 18 June 1916. He came to Australia after the Second World War having been a prisoner of war and subject to much suffering. It seems from the evidence of Mr Sadjak that the deceased was for a time a tenant of the 11 Martin Street, Lidcombe property which he later purchased. Mr Jan Racki moved into that house in 1959 and rented a room there from the deceased. He and the deceased were friends from about 1953 on. Mr Racki still lives in the house. He knew of the 1961 will and according to the defendant he told her of its location in the Commonwealth Bank at Lidcombe. The deceased and Mr Racki worked at the Homebush abattoir. The deceased did not speak English at all. Most of the central persons in this action met at the Roman Catholic Church at Ashfield, which conducted masses in Polish, and at the Polish Club in Ashfield.

14 Mr Ratajczak retired in 1983. There is little evidence of his activities from that time on. He and Mr Racki seemed to have lived quite a solitary life apart from attending church and the Polish Club although according to Mr Racki, the deceased was a heavy drinker. Hospital admission notes seem to confirm this.

15 The defendant, Mrs Skrzypczak was born in Poland in 1942. She came to Australia in 1989. She was a member of the Polish community around Ashfield. She met Anna Tyczynski there and according to the latter asked her to assist with an advertisement seeking work looking after a Polish man. As a result of that she formed a relationship with a Mr Kobialka and went to live with him in a Housing Commission unit at 9/12 Urana Street, Villawood where she remained after his death. She was apparently recognized as his carer by the Department of Social Security. Under an unproved will written in Polish, a translation of which is in evidence as Exhibit 16, she took the whole of Mr Kobialka’s estate which was probably small and limited to moneys in bank accounts. He died in 1993. Dr Lukaszewicz said, and I accept this part of her evidence that the defendant, while recognized as a carer of Mr Kobialka asked her, the doctor, to sign forms supporting a claim to be recognized as a carer for the deceased.

16 Mrs Skrzypczak met the deceased in 1991 at the Ashfield church. She was 49 and he 75. She said they became friends and she began to visit him in his home quite regularly. At some time in 1992 she noticed that he had not been to church for some weeks. She called at his home and found him very ill and probably well affected by alcohol. She was very concerned and called an ambulance and he was taken to the Auburn District Hospital.

17 Mrs Skrzypczak visited the deceased after his discharge from the hospital. She told him he needed to take proper care of himself. She said she asked him about his relations and he said that he had some in Poland, that he sent them money and gifts, but when he last visited in 1985 they were more interested in his money than in him. There was no challenge to this evidence but it would have been difficult to make one. It was similar to the evidence given by Mr Sadjak later in the trial.

18 Paragraph 11 of the affidavit of Mrs Skrzypczak sworn 13 June 2003 is as follows:

11. Ratajczak was very keen that I should visit him. I found that when I visited his house he asked me to perform tasks for him, such as house cleaning, washing and cooking and to help him shave. I said to him "I like to help you, but this is taking up a lot of my time". We had similar conversations on several occasions and one day, he said to me words to the effect: "I know that I am asking you to do things for me and spend time with me, I cannot pay you, but I would offer you that if you look after me and perform these household tasks, I will leave you my home after I am gone". I said, "I will have to think about it". Consequently I had a conversation where I said words to the effect "I have thought about what you have said and I am prepared to perform domestic tasks for you in exchange for being left your house after you die." This conversation occurred sometime in 1993 which was close to the time he was hospitalised in 1992.

19 In this affidavit there was no mention of the 1992 will. Mrs Skrzypczak said that after the conversation set out Mr Ratajczak had said to her “we will make the arrangement formal” and that he then wrote out a document in Polish on 8 June 1993. Without objection this was translated by the interpreter in court who, before embarking on the tasks said, “it is incoherent. It looks like it is written by someone who is semi-illiterate” and then she proceeded to translate it into English as follows (transcript page 229):

‘For the care’ - it is not clear. After the preposition, it looks like two words together, misspelt. ‘Hospital, I transfer everything that I possess for Jadwiga Skrzypczak, which I confirm with my signature, with my own handwritten signature’. And there is a signature, a very legible signature, this one, of Ratajczak, dated 8/12/1993.

20 The defendant then said, and I accept this evidence, that she discussed this matter with a member of the Ashfield congregation who told her that the document had no legal effect because it had not been witnessed. She said that she spoke to the deceased and told him about this and said to him “Perhaps you should make a will” and that he said “You make arrangements for a will to be drawn up and give it to me and I will sign it”. In this affidavit she said that she then spoke to somebody at the Lidcombe Immigration Office, whose husband was a solicitor at Allars Mottee and Company at Five Dock. She said that she consulted Mr Mottee who produced a draft copy of the will. He gave her instructions as to the requirements for execution. On 24 November 1995 she was present when it was signed by the deceased in the presence of Mr Sadjak and Anna Tyczynski.

21 The difficulty with this story is that it overlooked or made no mention of the 1992 will propounded in the alternative. This came to light later and the circumstances are referred to in an affidavit of the defendant sworn on 13 February 2006 which attempted to deal with this problem. The story about this is set out in paragraph 5 of that later affidavit, part of which is as follows:

5. I say that when I met the deceased I found that he required a number of personal services to be performed to assist him with day to day living. I performed such tasks as shopping, laundry, washing and ironing his clothes, cleaning his house, helping him shave and occasionally cooking. I did not reside at his house but visited there to help him. At first these were intermittent visits but I found that the deceased required more and more of my time. I had a conversation with him in the latter part of 1992 and said words to the effect "You are asking me to spend a lot of time in helping but what is there for me? You are not in a position to pay me". He said "That's right, I do not have the money to pay you but maybe I can make a Will in your favour". I said "That would be good. We should see a Solicitor”. He said, “I do not wish to see a Solicitor. Can you arrange for a Will and I will sign it.”

22 This time the defendant said that she did cleaning work for Mrs Mottee, whose husband was the solicitor and discussed with him at the house whether he would act for the deceased and go to Lidcombe to meet him but Mr Mottee said he was too busy. She said to him that the deceased wanted to leave everything to her and he said that he could prepare a will, but it must be witnessed by two witnesses who were not going to receive a gift and that he needed some identification showing the full name of the proposed testator. She got the pension card of Mr Ratajczak and showed this to Mr Mottee. I will return the circumstances of the execution of the will in due course. Mrs Skrzypczak said that she did not refer to the 1992 will in her first affidavit as she knew that there was a subsequent 1995 document which she assumed would take effect. It was in this later affidavit that the defendant said that after the 1992 will was made and she was spending a lot more time looking after the deceased, she became concerned as Dr Lukaszewicz was telling the deceased that “he could get rid of me”. She said that after telling the deceased that she was worried about this it was he who said that he would write out in his own handwriting what was to happen, which brought about the coming into existence of the document to which I have just referred.

23 The defendant said that after she was told this document written in Polish might not have any effect she said to the deceased “Perhaps you should make a new will” and he said “You make arrangements for a will to be drawn up and give it to me and I will sign it”. She spoke to Mr Mottee who said, “I have already made you one will” and she explained the deceased’s concern to him and he agreed to prepare a new document, being the 1995 English will. He gave her the same instructions about having it executed. I will come to the question of its execution shortly.

24 According to the defendant, the 1995 will was executed at her home on 24 November 1995 in the presence of Mr Sadjak and Mrs Tyczynski. Mr Sadjak confirms that. Mrs Tyczynski denies it. The defendant said that the deceased said to her “What is this that I am signing, I do not understand it” and she said “This is the will written by the solicitor in which you appoint me your executor and you leave me all of your property” and he said “Yes, that is what I want to happen” and that he then signed the document in the presence of Mr Sadjak and Mrs Tyczynski. The defendant said that Mr Ratajczak said “I want something written in Polish so I can fully understand what it is that I have signed”. She said that Mrs Tyczynski then wrote some words in Polish on a document, a copy of which is now Exhibit 7 after which Mrs Tyczynski gave the document to the deceased, she saw him read it and he signed and she saw Mrs Tyczynski sign it and also Mr Sadjak.

25 Even after this success the defendant remained worried as she had become aware that a will could be changed at any time. She said she discussed this with the deceased who said, “If you are worried I will simply give you my house”. She said that in 1998 as a result of this she consulted Mr Sten solicitor, whose advice to the deceased was that he should not transfer the house to the defendant because she might then throw him out of it and that he should at least retain a life interest. This is the last thing of note that happened in this somewhat extraordinary story. Mr Sten is an elderly man now retired who can speak Polish. He had been consulted by Mrs Skrzypczak. He said that he advised Mr Ratajczak that he should get independent advice and in fact wrote him a letter confirming this. He said that Mr Ratajczak refused to spend money on lawyers and would not do so. In any event after obtaining a new certificate of title because Mr Ratajczak had told him that he had lost the title deed, he obtained the necessary valuations and prepared the necessary documents for the land to be transferred by the deceased to himself for life with remainder to Mrs Skrzypczak. At the same time he prepared a deed dated 13 March 1998, the operative part of which was as follows:

In consideration of the purchaser taking care of the vendor since 1991, the vendor will give devise bequeath and transfer to the purchaser all of the vendor’s right title and interest in the real estate property commonly known as 11 Martin Street, Lidcombe, in the State aforesaid subject to the life interest in favour of the said vendor.

A deed of transfer under the Real Property Act 1900 is dated 13 April 1998 and states the consideration to be “deed of 13 March 1998”.

26 That transfer was registered and as a result of the death of the deceased as life tenant, Mrs Skrzypczak became entitled to the property in fee simple. There was some suggestion at earlier directions hearings that Mrs Skrzypczak had sold the property, but what has happened about that was not established by evidence.

27 The Lidcombe property was, so far as the evidence establishes, the only asset of the deceased. As it was not an asset of his at the date of his death because his life tenancy came to an end at that date, it will be seen that there were no physical assets in New South Wales at the date of death of the deceased requiring or justifying the obtaining of a grant of probate or letters of administration in this State. The property claimed to exist is a chose in action against Mrs Skrzypczak based on a claim that the transfer of the remainder interest in the Lidcombe property was obtained through undue influence. The purpose of Mrs Karwala seeking a grant in respect of the 1961 will is to give standing to her as attorney for her mother to take proceedings to have that transfer set aside or if that cannot be done in view of a subsequent transfer, to take proceedings against Mrs Skrzypczak for damages or equitable compensation or some other remedy arising out of such alleged improper transfer. The cross-claim is to prevent that happening.

28 The defendant said on affidavit that in 1993 she visited the deceased to assist him at least once a week and this increased to 3 or 4 times a week in 1994. I accept this.

The 1992 document

29 The witnesses to this will are Mr Stefan Beirut and Mr Piotr Rystwej. The defendant said on affidavit she told the deceased that Mr Mottee had prepared the will and that he needed two witnesses for it and that Mr Ratajczak said to her that she should get Mr Beirut and another person to attend for that purpose. Mr Beirut was a social worker with the Polish Welfare Information Bureau, an organisation funded by the Federal Government. He knew the deceased. Mr Rystwej was a hairdresser whom Mrs Skrzypczak had arranged to go to Lidcombe to cut the deceased’s hair. She asked Mr Beirut to go to Lidcombe for the purpose of witnessing the will.

30 Mrs Skrzypczak said that the deceased gave the document to Mr Beirut to read and that he “uttered words in Polish I had read in English on the document”. The deceased then signed it and the two witnesses signed. Both attesting witnesses gave evidence. Neither could recall whether the will was read to the deceased in Polish. Both were clearly honest. Mrs Skrzypczak was not cross-examined on her evidence that the will was translated for the deceased and I find that it was.

31 I accept the evidence of the attesting witnesses. Subject to the other defences, due execution is established. Mrs Skrzypczak said that she gave the completed will back to Mr Mottee. Mr Hannaford, solicitor, succeeded to the practice of Mr Mottee. He produced the will from safe custody after he had found the 1995 will. Apparently the earlier document was incorrectly indexed. It came to light after the proceedings commenced.

1995 documents

32 I have set out some of the evidence in paragraph 24. The persons said to be witnesses to these documents are Mr Sadjak and Mrs Tyczynski. Mr Sadjak had known the deceased since 1960. He saw him most Sundays at church. He met Mrs Skrzypczak when he helped her with some immigration matters. From 1993 on he said that he saw the deceased and Mrs Skrzypczak together on occasions and he went to birthday parties of the deceased arranged by Mrs Skrzypczak. In paragraph 9 of his affidavit he said that he recalled the deceased told him that he appreciated Mrs Skrzypczak caring for him and that he wanted to leave his property to her and that he wanted to make a will. Paragraph 10 of that affidavit is as follows:

10. I refer to the Will dated 24 November 1995 a copy of which is annexed hereto and marked with the letter "A". Before the Will was signed I read it to Wladyslaw Ratajczak in Polish. He approved the contents of the Will and I saw him sign the document marked annexure "A". Anna Tyczynski and I were present when Wladyslaw Ratajczak signed his name on the Will. Immediately after he signed the Will, both Anna Tyczynski and I signed our names as witnesses.

33 In oral evidence Mr Sadjak said that the will was signed in the defendant’s unit at Villawood and that he, the deceased and Mrs Tyczynski went there separately by train. In cross-examination he was asked whether the will was read to Mr Ratajczak after signing and he said that he thought Mrs Tyczynski read it. Prior to that he had said it was read in Polish first. He knew Mrs Tyczynski and he had been to dinner at her home at St Marys.

34 In somewhat confused cross-examination the following evidence was given:

Q. So, you said that you disclosed the contents of the will?
A. Yes.

Q. What did you disclose? What did you talk about?
A. Well, Mr Ratajczak I knew very well and he was telling me, every time we met, he was telling me about his relations in Poland, that he was not satisfied with his family, because when he was in Poland, they were plundering his pocket. So, I noticed that he was very happy with Mrs Skrypczak. She was taking care of him, and he decided, he was my age, one year earlier actually, he decided that Rookwood would be his last place, the cemetery, that he did not want to go anymore to Poland. And you know, every time I noticed I was invited to see Mr Ratajczak by Mrs Skrypczak, she arranged, for instance, a birthday party or something for all occasion, and she really took care of him and he was very happy with her. That was the reason that he decided to arrange for last will.

35 Mr Sadjak is an elderly man. His evidence was somewhat confused but the clear effect of it is that on the same day at the defendant’s home he witnessed the deceased’s signature to both the English will and the Polish will and Mrs Tyczynski wrote out the Polish will and that she witnessed both documents.

36 Mr Sadjak gave his evidence on Friday 7 February, the fourth day of the trial. On the following Monday Mrs Skrzypczak, in further evidence in chief, identified certain persons in a photograph including Mr Kobialka, Mr Sadjak, herself and Mrs Tyczynski. She said that the photograph was taken in Mrs Tyczynski’s home.

37 Mrs Tyczynski was called by the plaintiff. She swore two affidavits read in evidence. She denied witnessing either of the 1995 documents. She said that in 1999 the defendant asked her to sign a paper written in Polish said to have something to do with social security. After some pressure she said she agreed to sign. She denied that she wrote the Polish will. She denied that her signature appears as an attesting witness on either the Polish will or the English will. Her evidence in essence alleged that the signature on the Centrelink document was somehow forged or transposed onto the 1995 document with an extraordinary claim that she had written a will for Mr Kobialka, part of which was in the same terms as the Polish will of the deceased and that the defendant had made use of the words in the Kobialka will in preparing the will of the deceased.

38 Mrs Tyczynski brought to court a photograph of a party at her house. It is I think perfectly clear that the reason this photograph appeared was that she had been told about the earlier photograph put into evidence the previous day. She had said that she did not know the man in the photograph produced by Mrs Skrzypczak who had been identified as Mr Sadjak and she denied that the photograph was taken in her house. The photograph which she produced did not include Mr Sadjak. The evidence that the first photograph was not taken in her house was clearly untrue. Both photographs were clearly taken on the same occasion. There was the same picture on the wall, there were the same curtains, there was a bottle of Jim Beam on the table in the same place, there was the same cake in the same place and there was the same china. By the end of the cross-examination Mrs Tyczynski began to accept that Mr Sadjak had been at her house. In a complaint that she made to the police in 1994 she said that she did not know him. That was untrue.

39 In cross-examination Mrs Tyczynski was shown a copy of her affidavit sworn on 18 May 2005. She identified her signature on the first page of that affidavit and her signature on the second and third pages of that affidavit. The fourth page was an annexure which was a copy of the Polish will which had on it the signature which she said was not hers. It also had on it what was apparently her signature which appeared on all the annexures. When first asked whether the signature at the bottom of the page, namely the annexure, was her signature the witness replied, “Yes. I signed this – sorry I didn’t sign this. No. I didn’t sign this.. It is my signature but I didn’t sign it.” She denied that either signature was hers. In the same way the annexure B to that affidavit was a copy of the English 1995 will appearing to be signed by Mrs Tyczynski as an attesting witness and to have her signature on it as an annexure to the affidavit. She denied both signatures.

40 It is perfectly clear that the signatures on the annexures are those of Mrs Tyczynski signed at the time the affidavit was sworn. It was perfectly clear that this witness would say anything which she thought would assist Mrs Karwala and had no concern whatsoever for the truth. As a lay observer I consider perusal of documents put into evidence as admitted handwriting of Mrs Tyczynski make it perfectly clear that the challenged signatures are those of Mrs Tyczynski. I have no hesitation in accepting the evidence of Mr Sadjak as to this. I find that due execution of both documents is established.

41 Mrs Skrzypczak said that she took both wills back to Mr Mottee. He said to her that there was no need for the Polish will and he gave it back to her. She said that she put this, namely the Polish document, in a safe deposit box at the bank, and took it out for the purpose of preparing for this case. She gave it to Mr Kinsey, who is her solicitor, who made some photocopies of it and he gave it back to her. She did not put it back in the bank, but put it with other papers on a desk in one of the bedrooms in her home. She said that Mr Julian Karwala, the plaintiff’s husband, broke into her premises on 12 March 2003. He admitted in evidence that he did. Her daughter told her that he was there. She contacted the police who after a long time persuaded Mr Karwala to open the door. Mrs Skrzypczak said the papers on her desk were all mixed up. The original Polish will was not there. I accept this evidence. It was not put to Mr Karwala in cross-examination that he either took or destroyed the Polish will, but in evidence in chief he denied taking it. He admitted he had broken into the house. The relevance of this evidence is that the Polish document, which in my view if valid, is the last will of the deceased, was not last traced into the possession of the deceased, but was last traced into the possession of Mrs Skrzypczak. There is therefore no presumption of revocation. It would therefore be in order if otherwise proper, to make a grant of letters of administration with a copy of the Polish will annexed to Mrs Skrzypczak she being the sole beneficiary and there being no executor.

Testamentary capacity – medical evidence

42 This is a strange case where there is very little lay evidence which relates to the question of testamentary capacity. The witnesses for the plaintiff were so intent on expressing their strong disapproval of the defendant and in their view her never-ceasing efforts to get the house for herself, that no proper attention was given to the really important facts. I will however deal with the medical evidence first.

43 Dr Lukaszewicz qualified in medicine in Poland in 1964. She practised there for about 17 years and came to Australia, undertook further study and qualified for registration as a medical practitioner in New South Wales in 1987. The deceased became a patient in October 1989, but for a number of years he attended Dr Lalak as a general medical practitioner as well. In fact the evidence seems to show that until at least 1991 he consulted Dr Lalak as much as Dr Lukaszewicz. The defendant, Mrs Skrzypczak was also a patient of Dr Lukaszewicz but they fell out later it seems because the doctor thought that Mrs Skrzypczak was taking improper advantage of the deceased. The doctor said that on the first consultation on 29 October 1989 she obtained a social history of the deceased even though that is not reflected in her notes. She said the deceased told her he had a will and had left everything to his family in Poland. I have strong reservations about this evidence. The deceased was seen by Dr Lukaszewicz on a few occasions during 1991 and 1992, but on no occasion was there any indication of dementia or any mental incapacity, at least as shown in the notes. However, on 22 September 1992, the deceased was taken by ambulance to Auburn District Hospital. Dr Lukaszewicz said that she had visited the deceased on the same evening, apparently before Mrs Skrzypczak went and had found nothing the matter with him. It is somewhat strange but I do not think anything in particular turns on this. The deceased was in a confused state on arrival at Auburn Hospital. He was seen by Dr Haber, a cardiac physician, who diagnosed him as suffering from a pulmonary embolism. Tests this was proved to be correct. The deceased was discharged home on 14 October 1992. He saw Dr Haber again in his rooms on 28 October 1992 in the company of Mrs Skrzypczak. Mrs Skrzypczak told the doctor that the deceased was “confused at times only and he manages quite well at home”. Dr Haber found him quite confused, although he reported that Mrs Skrzypczak thought he was managing quite well. Dr Haber did not see the deceased again until March 2000, when he suspected deep venous thrombosis in the right leg and recurrent clots in the lungs, but these were not all confirmed. He found him to have advanced dementia. In August 2000 he found him to be markedly demented.

44 Dr Lukaszewicz wrote a report for Messrs Connery and Partners dated 21 January 2000. That report was written in connection with a possible claim by the Protective Commissioner to whom the estate of the deceased had been committed for management, against Mrs Skrzypczak in respect of the transfer of the house. In that report the doctor said that the deceased remained in good health until August 1992. She referred to the admission to Hospital in September 1992 and stated that in November 1992 he refused further treatment with Warfarin but despite this remained in good physical health. She said that she first came upon memory and mental problems on 7 March 1993 when Mr Ratajczak complained for the first time of poor memory and forgetfulness. She said that between 1993 and 1995 while she was treating Mr Ratajczak on many occasions he mentioned deterioration in his memory and in an examination in January 1996 she noted him to be “very poorly oriented, he didn’t know simple information like the day of the week nor its date. His physical condition was good. He was nicely dressed, clean and content.” She said that she noticed from 1997 to 1998 Mr Ratajczak’s dementia had deteriorated very fast.

45 The estate of the deceased was committed to the management of the Protective Commissioner in June 1999 and the Public Guardian was appointed guardian of his person. In a letter to Messrs Fredericks & Co, solicitors, dated 29 July 2000, they being other solicitors apparently engaged on behalf of the deceased, Dr Lukaszewicz said:

Mr W Ratajczak as you know suffers from dementia since 1994. His condition has progressed with time. In fact for the past four months it has declined rapidly. His general health is worse; he developed vertigo, loss of balance and also became urine incontinent.
These conditions are not curable and they are in fact symptoms of progressive dementia”.

In 1999 the deceased was referred for assessment to the Aged Care Psychiatric Service at Bankstown-Lidcombe Hospital and was seen by Dr Bridgford there. He wrote a report for the Guardianship Tribunal dated 31 May 1999. In his report Dr Bridgford said that Dr Lukaszewicz had told him that the deceased “has dementia for approximately four years and that it has worsened over the past two years”. It is reasonably clear that by 1999 the deceased was severely demented.

46 Dr Lukaszewicz’s evidence must be treated with great caution. There is no doubt that she has strong views adverse to Mrs Skrzypczak. Her evidence at the start was directed towards 1995 and she obviously made efforts to bring this back to 1992. To make it clear that she was not disinterested the following appears at page 468 of the transcript:

Q. You took a very close interest in this case, didn't you?
A. No, I have not got any interest in this case, apart from being here on the first day, when I was here, that I did not come here other than to help your Honour, to give evidence, which I have a lot, regarding this case, and that is the reason I come here, for no other reason, because I know how complicated the case is. I am involved from the beginning, with the Guardianship Tribunal, and I know how much time I sacrificed for this man, who was, actually, if I can say, was mentally ill. He was robbed by the lady who is sitting over there, when he was mentally ill. She was many times treated by me and I said that she's not doing the right things because when she come to my surgery, which she was my patient for nine years, I know how much she help him, and, therefore, when I noticed that she's really invading his house, a few times, very gently, because she was my patient, I told her you are not doing the right things, and she still does not understand and went behind my back, and everything was discovered in 1999, actually. But all these things from 1992 and 1995 is a false document, which I can swear to, and I have got evidence for this, that it is a false document from 1992, which she prepared in 1995, and I can go anywhere in the state and say this because I know the case.

Q. Madam, you have very strong feelings about this case, don't you?
A. I have very strong feelings because I suffer about it. He was my patient who was sick and she robbed a sick patient and should he be punished more than normal people?

Q. You believe Mrs Skrzypczak is very wicked person indeed?
A. Yes.

47 A considerable amount of time was spent on the doctor’s medical records and some time on their strange disappearance during the trial. As this was not really pursued by counsel for the defendant it is not necessary to make any finding about the disappearance, but the evidence of the doctor as to matters which do not appear in her notes in evidence, must be treated with great care, particularly as the copy of some of the notes which appeared in court for the first time on the first day the doctor was giving evidence was not put into evidence and neither was the original. The refusal of the doctor to admit that she sent copies of her notes to Messrs Connery Partners, when the evidence makes it quite clear she did send them, is another reason to doubt the veracity of much of her evidence. I am prepared to accept, however, that the doctor’s notes which are in evidence do not give a full account of all attendances she had on the deceased, particularly home visits. She has, however, an entry in her unchallenged notes of 7 March 1993 which noted “poor memory, forgetfulness since last hospital treatment” and another entry of 15 November 1995 where she noted that the deceased’s memory was very poor, that he was disoriented with time and space and unable to manage himself and she further noted on 7 January 1996 “dementia, depressed mood, he became very slow, orientation very poor, doesn’t know who is Prime Minister, doesn’t know what day of week it is, doesn’t know the date” and in examination in chief she said in 1995 “he was totally having severe dementia”. It follows from this that while this evidence is relevant to the 1995 documents there is little medical evidence about the position in 1992 and during 1991 and 1992 from Doctors Haber and Lukaszewicz.

48 Dr Lalak, was the deceased’s more regular general practitioner in 1991 and probably 1992 as well. He said the deceased became more confused in 1993. He did not see him in 1994.

Testamentary capacity - lay evidence

49 There was little lay evidence on the issue of capacity. Although a lot of the affidavit evidence of Mr Racki was rejected, I gave leave for his evidence to be adduced orally in admissible form. For some reason no real attempt was made to do that, although I did suggest to counsel it be done. Mrs Lozinski, who knew the deceased from 1980 on gave evidence. In 1990 she thought he was lucid enough if not affected by drink. By 1994 she said that she could not talk to him, but that was apparently because of his indulgence in alcohol at parties where they were both present. At least in 1990, as I understood it, he talked about his family in Poland. Mr Racki did say that in 1990 the deceased had “problems with his head and he lost his memory”. He said that his health started to get worse when he started to drink a great deal more after he became entitled to the pension in 1985. Mr Racki is an elderly man. His evidence was extremely confused, ranging across a long period of years when he lived in the same house as the deceased. It is clear from his evidence and from the evidence of other persons that the deceased did drink too much, at least on occasions but apart from this the evidence is of little value on the question of capacity.

50 Mr Julian Karwala is the husband of the plaintiff. He was for some time in a relatively close relationship with the defendant, whom he met in 1992. He married the plaintiff in 1999. He first met the deceased in 1993 when he visited his house in the company of the defendant and from time to time he went there with the defendant and assisted with the shopping for the deceased. He said that he did not see the deceased in church after 1992 and that it was not possible from the time he met him to have any real conversation with him. He said, probably referring to 1993 that the deceased did not understand that Christmas was coming. In 1994 he said that he was fading in health and getting weaker and weaker, but he could reminisce about his early years in Germany and during the war.

51 To divert from the capacity question for a moment, there was the somewhat extraordinary incident when Mr Karwala broke into Mrs Skrzypczak’s house in 2003. He explained that he did this for the purpose of making a protest “against the fact that the house was simply stolen”. Not a great deal turns on this. By 1999 he and the plaintiff had moved into the deceased’s house and had excluded the defendant from it. They said that from then on they looked after the deceased. There is nothing to show that that was not the position. The break in was just one of the somewhat extraordinary things in this case. In examination in chief, Mr Karwala was asked whether the police discovered a will in his pocket as they searched his body and he said, no, that he had nothing. The cross-examination, if it had taken place, presumably would have been as to whether or not Mr Karwala took the Polish will.

52 There are some other strange parts to the evidence of Mr Karwala. For instance in an affidavit sworn on 4 February 2006 he said that in December 1997 he was present at a conversation between the defendant and Mr Mottee when the defendant asked Mr Mottee to help her produce a will and said that she was looking after Mr Ratajczak and would like to get his house and inquired what should she do to get the house and he said in paragraph 3 of that affidavit, “Mr Mottee told the defendant that he would not be willing to help to do the will. He said, ‘It would be better if you do the transfer instead of the will. In that way you will circumvent the issue of mental capacity if such arises in the future.’” I do not accept that evidence. By that date Mr Hannaford had acquired the practice of Mr Mottee. There is another piece of evidence which was repeated one way or another by various other witnesses to the effect that the defendant was seen practising the deceased’s signature on a small piece of paper. What was said to be a copy of that piece of paper seems to have been annexed to various affidavits, but so far as I can determine it can have no significance. The purpose of this evidence apparently was to show that the defendant forged the signature of the deceased on the 1992 and 1995 wills. The fact is that is not the case. There was no evidence of forgery.

53 Finally on the question of capacity, I should refer to the evidence of Mr Sten, solicitor, who of course did not meet the deceased until 1998 at the time he was taking instructions for the transfer of the Lidcombe property. His evidence was that to the best of his recollection the deceased was fully aware of what he was doing at that time and he gave him all the details for the documents and was aware of what was going on and showed no signs of dementia. He remembered a conversation with the deceased when the deceased said that he thought that he was making a good deal with the defendant, who would care for him, feed him, wash him and change his clothes without any payment. Mr Sten said that the deceased did not have any will. He was adamant about that although it is not quite clear how he came to that view. It is fair to say that Mr Sten himself is a very elderly man who has just recently retired as a solicitor. He said that the deceased refused to sign a will as he was not wasting any money on lawyers. This does not carry the matter much further and I do not place reliance on Mr Sten’s evidence as showing that the deceased had capacity in 1998.

54 It is now necessary to make a decision on capacity. I have no doubt that the deceased was aware of his assets. Apart from any money in his bank account which came from the pension and it is clear there was little surplus, his only asset was his home and I find that he knew that he owned it. I find that the deceased knew the documents he was signing were wills and that he understood the nature of a will. I find that to be the position in both 1992 and 1995. So far as the evidence shows, the only family members who would have any claim for consideration on the testator’s bounty were his relatives in Poland for whom he made provision in the 1961 will. He had reason to make a will in favour of Mrs Skrzypczak. At the time he made the 1992 will the evidence shows that he was in need of assistance and it shows that Mrs Skrzypczak was providing considerable assistance for him which continued into 1995. At both dates she was a person who would probably be considered by the deceased when he came to consider the disposition of his estate by will particularly in light of the agreement Mrs Skrzypczak said she came to with him. There is no evidence apart from that of Dr Lalak, which would go to show that Mr Ratajczak was not capable of making a rational decision in 1992, nor that he did not have the cognitive skills to understand the effect of what he was doing and I do not consider Dr Lalak’s evidence goes so far. The evidence of confusion on admissions to hospital suffering from the pulmonary embolism and anoxia does not go to defect of mind. I accept the unchallenged evidence of the defendant that the 1992 will was read to the deceased and I consider it quite unlikely that Mr Beirut would have witnessed the document had he thought the deceased did not know what he was doing.

55 So far as the 1995 documents are concerned, the position is not quite so clear. I do however accept the evidence of Mr Sadjak as to the deceased’s views of his relatives in Poland and of the expressed wishes to the deceased. It is also necessary to remember that even on the evidence of Mr Karwala, the deceased had made gifts of considerable value to the members of his family in Poland. The evidence of Dr. Lukaszewicz is so unsatisfactory that it should not be relied upon the question of capacity, except to the limited extent which I have stated. She, like Mr Karwala, Mrs Karwala, and Mrs Tyczynski were so determined to express the view that the documents were forgeries that there can be no doubt whatever that their evidence was completely coloured by that desire. Dr Lukaszewicz may not have known that the allegation of forgery could not possibly have been true, but certainly Mrs Tyczynski knew. As I have found that Mrs Tyczynski wrote the Polish will at the request of the deceased and that he signed it after reading it, this supports a finding that the deceased understood the nature and effect of the document. I shall deal with this matter finally when I come to the question of lack of knowledge and approval.

Knowledge and approval

56 As I said during the hearing this case differs from the ordinary case in which a will is produced on instructions from the principal beneficiary in circumstances where the solicitor drawing up the will has received no direct instructions from the deceased and has not been present at the time the will was executed. The difference is that here the defendant never denied her desire to secure the property, which was the price of her assistance to the deceased. It is quite unlikely that she would have continued to assist the deceased if he had not made the 1992 will and the organisation for the new will in 1995 might have resulted from some concern on the part of Mrs Skrzypczak that the document written in Polish in 1993 might have some bearing on the 1992 will. In any event her subsequent successful endeavour to get the remainder interest in the property put into her name makes it perfectly clear that she was determined on this course, perhaps because in some way she had learned that Mrs Karwala might come to Australia.

57 Under the circumstances it is obvious enough that the presumption of knowledge and approval that will flow from production of a document which, on its face, appears to be properly executed does not arise and the onus is on the cross-claimant to “dispel the doubt”. The righteousness of the transaction must come into question and the court should take care in concluding that the testator knew and approved of the contents of the wills and that they expressed his own testamentary intentions rather than the desire of the defendant to obtain a benefit for herself at the expense of others. Fulton v Andrew (1875) LR 7 HC 448; Barry v Butlin (1838) 2 Moo PC 480.

58 It is, of course, necessary to consider this matter together with the question of capacity and any question of fraud or undue influence. Whatever else is the position, while undue influence was pleaded as a defence to the cross-claim there is no evidence whatsoever the defendant exerted any influence in the nature of coercion on the deceased. It might be said that she exerted some pressure on him insofar as the 1993 document was concerned and perhaps insofar as she said that looking after him was taking a great deal of her time, implying that she could not continue to do this for nothing in circumstances that she knew that the deceased was not able to pay her for her work. It could also be said against her that she had, it seems, taken the whole of the estate of Mr Kobialka in circumstances that she was apparently looking after him or notified as his carer. In some ways none of this puts Mrs Skrzypczak into a good light: it does not establish coercion but it does give reason to look at her evidence with care. Nevertheless the facts which I have set out as to the circumstances in which the 1992 document was executed, particularly the presence of Mr Beirut there and the circumstances in which the 1995 document was executed and evidence of Mr Sadjak, which I accept, brings me to the conclusion that the deceased was aware of his actions, that he understood their effect and that each document was a product of his will rather than the will of Mrs Skrzypczak pressed upon him. In some ways of course it is easier to come to this view having regard to the extraordinary evidence put forward by Mrs Karwala and her witnesses and the extraordinary way in which this case was conducted. It must be borne in mind that once the finding is made that the Polish will was written by Mrs Tyczynski it is reasonable to find that it was so written to express the true intentions of the deceased and that he was capable of expressing his intentions.

59 This is a case where it is important to remember where the onus lies. As reasonable doubt has been raised as to at least the questions of knowledge and approval and testamentary capacity, the onus is on the person propounding the wills to establish knowledge and approval and capacity. The following passage from the joint judgment in Worth v Clasohm (1952) 86 CLR 439 at 453 puts the position clearly and applies to knowledge and approval as well:

A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

There is a doubt as to capacity and knowledge and approval; but on final consideration of the evidence as required by the passage, I consider the requirements of Banks v Goodfellow (1870) LR 5 QB 549 made out.

Final conclusion on capacity and knowledge and approval

60 In view of the way in which the defence to cross-claim was pleaded, it is perhaps important that I set out my findings which are as follows:-

1992 will

(a) It was duly executed by the deceased in the presence of the two witnesses as stated.

(b) The signature of the deceased was not forged. The signature on that document was the signature of the deceased. There is no evidence to the contrary. The document examiner, who gave evidence, did not examine the original wills and came to no conclusion on the copies she examined.

(c) The deceased had testamentary capacity at the time the will was made and he knew and approved of its contents.

(d) The will was not obtained by undue influence of the defendant/cross-claimant.

(e) The will was not procured by fraud. Most of the particulars given of fraud relate to other defences. None of the claims as to misrepresentations about Polish relatives was made out.

61 So far as the 1995 documents are concerned I make the same findings. Doubts are raised by the health of the deceased, the undoubtedly desire of Mrs Skrzypczak to get a benefit for herself, opportunities to put some pressure on the deceased for this and by the evidence of Dr Lukaszewicz to the very limited extent to which I consider that evidence reliable. In the long run however, taking all these matters into account as required by Worth I conclude that the 1995 Polish document is a valid will.

62 I also accept the evidence of Mrs Skrzypczak as to its last being located in her possession so that no presumption as to revocation arises. In those circumstances a grant of administration with a copy of the document annexed should be made to Mrs Skrzypczak the sole beneficiary named in the said will, until the original be proved. I should perhaps add that if I had not come to this conclusion I would have found the 1992 will to be valid.

1. Order the plaintiff’s claim be dismissed.

2. Order that Letters of Administration (with a copy of the will written in the Polish language being Exhibit 7 in the proceedings, together with a translation into English of the document as contained in Annexure B to the affidavit of Mark Witenowski sworn 9 February 2006 annexed) be granted in solemn form to the defendant Jadwiga Skrzypczak limited until the original will be proved.

3. Refer the papers to the Registrar to complete the grant.

4. Order the plaintiff/cross-defendant pay the defendant/cross-claimant’s costs of the proceedings.

5. Exhibits other than the testamentary documents may be returned after 28 days.

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