Meissner v Lindsay

Supreme Court

New South Wales

Case Name:	Meissner v Lindsay
Medium Neutral Citation:	[2016] NSWSC 790
Hearing Date(s):	1-2 March 2016, 27 April 2016
Date of Orders:	20 June 2016
Decision Date:	20 June 2016
Jurisdiction:	Equity
Before:	Robb J
Decision:	(1) Order that the plaintiff’s claims in pars 1 to 4 of the summons be dismissed. (2) Order the plaintiff to pay the defendant’s costs of the proceedings in relation to the claims referred to in order 1. (3) Direct the parties to deliver to the court and serve on each other any submissions they wish to make as to the basis of the costs order made in order 2 within 14 days. (4) Direct the parties to deliver to the court and serve on each other a statement in writing of their position in relation to the further relief claimed by the plaintiff in the summons and by the defendant in the cross claim, and as to the directions that should be made for the further conduct of the proceedings in relation to that relief within 14 days. (5) Direct that the exhibits and any documents produced on subpoena or notice to produce may be returned forthwith.
Catchwords:	SUCCESSION – Wills, probate and administration – the making of a will – probate of will made by deceased on 17 December 2008 granted to defendant – plaintiff sought declaration that deceased had made a later valid will on 10 February 2010 – evidence tendered by plaintiff that the deceased made the later will not accepted – plaintiff’s claim dismissed – no question of principle EVIDENCE – cross-examination of witnesses – whether there was failure by defendant’s counsel to comply with the rule in Browne v Dunn – defendant disclosed attack on plaintiff’s witnesses in written opening – Held plaintiff satisfied the rule
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Browne v Dunn (1894) 6 R 67
Texts Cited:	JD Heydon; Cross on Evidence (10 ed)
Category:	Principal judgment
Parties:	Ladislaus (Joe) Meissner (plaintiff) Pamela Lindsay (first defendant) Australian Cancer Research (second defendant)
Representation:	Counsel: M Thompson (plaintiff) K Morrissey (first defendant) Solicitors: Gerard Malouf & Partners E Berman & Co (first defendant)
File Number(s):	2013/260130
Publication Restriction:	None

JUDGMENT

1 Ms Sharron Dale Meissner (the deceased) died on 7 August 2013.

The 2008 will

The deceased made a will dated 17 December 2008 (the 2008 will). Relevantly, she appointed the defendant, Ms Pamela Lindsay, as her executor.
Ms Lindsay was granted probate of the 2008 will by the Supreme Court of New South Wales on 31 October 2013.
The operative part of the 2008 will provided as follows:
4. I instruct my Executor to convert the balance of my estate into cash and upon conversion to divide the same as follows:
the sum of one hundred thousand dollars ($100,000) to St Vincents Hospital
the sum of one hundred thousand dollars ($150,000) to Cancer Research Foundation
the sum of twenty thousand dollars ($20,000) to the RSPCA
the sum of two hundred thousand dollars ($200,000) to my mother and father, CONSTANCE SMITH and JOHN EDWARD SMITH, each provided they survive me.
5. I DIRECT the rest and residue of my estate to be divided equally between all my six nieces and nephews David Smith, Carly Smith, Amber Smith, and Ben Smith, Martin Thomas and Samara Thomas and my brother Stephen and sister Kerrie-Anne and for each of those under the age of 25 this amount should be held in trust until they attain 25 years.
The inconsistency in the verbal and numerical descriptions of the gift to the Cancer Research Foundation is not material to the present dispute.

The plaintiff’s claim for relief

The plaintiff, Mr Ladislaus (Joe) Meissner, was married to the deceased on 27 August 1982. Mr Meissner described himself in his 26 April 2015 affidavit as the husband of the deceased. However, a certificate of divorce issued by the Federal Magistrates Court of Australia certifies that the deceased and Mr Meissner were divorced with effect from 6 September 2008.
The plaintiff commenced these proceedings by summons filed on 7 August 2014. He then filed a statement of claim on 28 October 2014.
The relief claimed by Mr Meissner that is relevant for the purposes of this judgment is the relief claimed in par 1, which is as follows:
1. A declaration that the document annexed hereto and marked “A” dated 10 February 2010 is the Last Will and Testament of Sharron Dale Meissner.
Mr Meissner seeks consequential relief if that declaration is made, including an order that the grant of probate made to Ms Lindsay on 31 October 2013 be revoked; an order that Ms Lindsay deposit the grant in the Registry; and further orders concerning the administration of the deceased’s estate.
As I understand it, the parties are agreed that the court should defer consideration of the consequential orders until a later time, if Mr Meissner succeeds in obtaining the declaration that he seeks in par 1.
The parties are also agreed that the court should defer Mr Meissner’s claim for a family provision order that he makes in par 5.

The defendant’s cross claim

Ms Lindsay filed a cross claim on 24 December 2014. She seeks an order that probate in solemn form of the 2008 will be granted to her, and certain relief in the alternative.
Ms Lindsay did not direct submissions towards the relief claimed in the cross claim in her final oral and written submissions. As I understand it, this approach was consistent with that which the parties adopted in relation to the relief claimed by Mr Meissner, which was that the court would be asked in the first instance to deal only with the validity of the document which is annexed to the summons.
If it becomes necessary as a result of the determination of the question that is now before the court, consideration can be given to the granting of the relief sought in the cross claim.

The 2010 document

The document that Mr Meissner claims is the last will and testament of the deceased, which is annexure A to his summons, and which I will call the “2010 document”, is in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of SHARRON DALE MEISSNER of 40 Refinery Drive, Pyrmont, NSW, Company Director.
1.   I REVOKE all former Wills and Testamentary dispositions and I DECLARE this to be my last Will and Testament.
2.   I APPOINT MY BROTHER STEPHEN SMITH of 13 Yellambie Street, Yowi Bay, NSW, Executor and Trustee of my Will and I DECLARE that the term “Trustee” shall refer to him and/or any Executor and/or Trustee of my Estate appointed for the time being.
3.   I GIVE DEVISE AND BEQUEATH the whole of my Estate, both real and personal of whatsoever nature and wheresoever situated to my Trustee to be held upon the following Trusts:
a)   To first pay all my debts, duties and Testamentary expenses.
b)   PROVIDED that they survive me for more than two months pay the sum of $200,000.00 to my parents Constance and John Smith.
c)   Pay the sum of $100,000.00 to SAINT VINCENTS HOSPITAL.
d)   Pay the sum of $100,000.00 to the CANCER RESEARCH FOUNDATION.
e)   Give my clothing and personal items to my sister KERRIE THOMAS.
f)   PROVIDED that he survives me for more than six months give the balance of my Estate to my partner and husband LADISLAUS (JOE) MEISSNER.
4.    I DECLARE that my Trustee shall have the following powers:
a)   At his discretion, to retain any of my assets in specie or to sell and convert into money such of my Estate as shall not consist of money; with power to postpone any such conversion for such period as my Trustee shall think fit.
b)   To invest and (sic) part or parts of my Estate in such manner as my Trustee shall in his absolute discretion deem fit.
SIGNED by the Testator this
10th Day of FEBRUARY 2010   (Sgd) S Meissner
In the presence and sight of the
undersigned witnesses both present
ut the same time
(Sgd) B Middleton   (Sgd) T Quale
7 Bergin Place 39 Francis Street
Minchinbury NSW 2770 CAMBRIDGE Pk
TERRY QUAYLE
The most obvious difference between the 2008 will and the 2010 document is that in the former the residuary estate was left to the deceased’s six nephews and nieces and her brother and sister equally, while in the latter the residuary estate was left wholly to Mr Meissner.

The signing of the 2010 document

Mr Meissner gave evidence in his 26 April 2015 affidavit that, in late 2009 and early 2010, he had a number of conversations with the deceased about what was to happen when each of them died. He said that the deceased said to him that she wanted them to do their wills together, and that, in early February 2010, the deceased said to him words to the effect: “I have our wills. I want to come over to Fairfield House so we can sign them.” He said to her: “You can come by whenever you like”.
Fairfield House is a large house at Windsor, which at one time Mr Meissner and the deceased owned jointly. In February 2010, Fairfield House was the residence of Mr Meissner. The deceased lived in an apartment at Pyrmont.
He then said that, at around 11 AM on 10 February 2010, the deceased came to Fairfield House so that they could sign the wills that she had prepared. Mr Meissner did not give any evidence about giving instructions to the deceased so that she could incorporate any of the terms that he wanted to be contained in his will, in addition to whatever the deceased may have wished to include in his will for the purpose of the two wills being mutual. As the supposed will of Mr Meissner is not in evidence, its terms cannot be known.
Mr Meissner said that, shortly after the deceased arrived, his friends Brad Middleton and Terry Quayle also arrived, as they were going to have lunch together. The deceased asked Mr Middleton and Mr Quayle to witness the two wills, and they agreed. Mr Meissner said that he saw the deceased sign her 10 February 2010 will, and Mr Middleton and Mr Quayle witnessed the deceased’s signature on the document.
Mr Meissner said that, after his will had been signed and witnessed, the deceased then retained the originals of the two wills.
Mr Middleton and Mr Quayle each swore brief affidavits in which they corroborated Mr Meissner’s evidence concerning the circumstances in which the deceased signed the February 2010 document, save that Mr Middleton said that the pair arrived at Fairfield House between 11 AM and 1 PM, and Mr Quayle said that they arrived just before midday.

Separation and division of matrimonial property

There is in evidence an application for consent orders in the Family Court of Australia, in proceedings no PAF 1569/2004. The document bears the seal of the Family Court. It appears to be signed by both the deceased and Mr Meissner, and dated 26 March 2004.
The document contains a statement that the “date of final separation” was 28 August 2000.
It also contains a reference to an attached copy of a financial agreement.
The evidence includes a document described as “Proposed Orders Sought”, which has been drawn as if intended to be the subject of orders made by the Family Court of Australia at Parramatta, in proceedings no PAF 1569/2004, in the marriage of Mr Meissner and the deceased. It is dated 26 March 2004; signed by Mr Meissner and the deceased; and witnessed by a Justice of the Peace.
The document required Mr Meissner to pay the deceased $500,000 by 8 April 2004, and for the deceased to transfer her interest in Fairfield House to Mr Meissner. Mr Meissner was required to indemnify the deceased in respect of liability under a mortgage over Fairfield House. The document also provided for the division of the balance of the matrimonial property.
Mr Meissner gave the following evidence in cross-examination (T 38.35 to 38.44):
Q. Could you go to page 154 of the Court book please? This is a document that is headed "Divorce statement dated 13/06/2002 prepared by Sharron Meissner."
A. I dispute that. I don't think she prepared anything like this.
Q. Firstly, is it the case that you and she did not live together from around 30 August 2000?
A. No, that is not the case at all. We had our differences of opinion. Sometimes we preferred to live in our own place or own space.
He then continued (T 41.48 to 42.15):
Q. In 2004 you and Sharron came to an arrangement to divide matrimonial property up?
A. Yes, she prepared some documents, said she wanted to divide things up
and I said, "Yeah, okay".
Q. Court book page 172.
A. 172, yes, I see that.
Q. So you went to the Family Court at Parramatta it seems, the registry anyway?
A. Yes, it was a friend of hers that's why I went agreed to go. I wouldn't go to Parramatta otherwise.
Q. The essence of the settlement was that she was to get $500,000 from you in return for her transferring her half share in Fairfield House to you?
A. In essence that was the case, and she also had to equitably divide the rest of the property, which she never did. And I might add, a valuation for Fairfield House was 750 at the time, with a mortgage of $600,000.
The document at page 172 of the Court Book is an Application for consent orders in the Family Court of Australia in file no PAF 1569/2004. It contains a reference (at page 174 of the Court Book) to “Attach a copy of the financial agreement”, which is ticked yes.
In this evidence, Mr Meissner appears to accept that he and the deceased made an agreement for the division of the matrimonial property that is consistent with the division provided for in the document “Proposed orders sought”.
At a later stage in his cross-examination, Mr Meissner was asked to agree that the four-page document called “Proposed orders sought” was a copy of the orders sought by Mr Meissner and the deceased in the Application for consent orders, and referred to in par 63 of the document as: “A copy of the orders sought is signed by the parties and attached” (see page 181 of the Court Book). The relevant part of the transcript is as follows (T 112.12 to 113.18):
Q. Do you see at court book page 181, look at that, you see orders sought 63, "Orders sought. Cross every box that applies. A copy of the orders sought is signed by the parties and attached." I put to you that this four page document here is the document referred to at page 174 and 181. Is that not the case?
A. Well, you had better ask it at question 1 again?
…
Q. I put the question again that this document here, this document, this four page document is the document that is referred to
A. No, I can't agree with that because the document signed at Parramatta Court, I signed all the bottom of the pages and so did Sharron. This document I have not seen until at this Court. I said that to the barristers as well. It is all in Sharron's writings and ticks. They're not mine.
…
Q. Mr Meissner, this document bears the signature on the first page we have S Meissner. That's Sharron's signature, isn't it?
A. That's right.
Q. And we have got your signature there, haven't we?
A. Yes.
Q. So we have got one page with Sharron's signature and yours?
A. All four pages.
Q. All four pages are signed by you?
A. Yes.
Q. So I put to you that this document here is the document referred to in the application for the consent orders?
A. I don't know because I didn't prepare them. Well, you can laugh at me. I don't know.
Q. No, I'm not laughing at you. I am not laughing at you, I am just recognising that your previous answer which was this is definitely not because I signed the bottom of each page
A. I did.
Q. to now becomes I don't know.
A. I did not these documents aren't mine because I did not sign them on the bottom. I signed all the documents on the bottom and so did Sharron. I have the original copies. I have the originals actually in a safe of these documents, and it is more than four pages. That's not what I see here.
In his 26 September 2015 affidavit in reply, Mr Meissner dealt, in pars 4 to 6, with the consent orders filed in the Family Court of Australia on 26 March 2004. He claimed that, in about mid-March 2004, the deceased telephoned him, and told him she had prepared Family Court documents, and that she had made an appointment for the both of them to see the Registrar of the Family Court at Parramatta “who is a friend of mine” (meaning a friend of the deceased). The only reason proffered by Mr Meissner for why the deceased wanted the consent orders to be made, and the only reason why he cooperated, was statements that he attributed to the deceased: “If she (Michelle Shi) is to get the Penthouse, then I want my own property too”, and “I want to keep these documents as security against Michelle”.
Michelle Shi was a woman with whom Mr Meissner had a long-term relationship during his marriage to the deceased. Mr Meissner and Ms Shi had a son together.
I do not find Mr Meissner’s evidence on this subject credible. Initially, he agreed that he and the deceased entered into an agreement to divide the matrimonial property in a manner consistent with the terms of the Proposed orders sought, but then subsequently denied that that document was the financial agreement referred to in the Application for consent orders, upon what I consider to be the spurious, indeed irrational, ground that: “I did not (sic) these documents aren’t mine because I did not sign them on the bottom. I signed all the documents on the bottom and so did Sharron. I have the original copies. I have the originals actually in a safe of these documents, and it is more than four pages”.
The two documents are dated the same day, as the Application for consent orders bears a filed stamp of 26 March 2004, and the Proposed orders sought have been dated the same date by hand.
I infer that the document called “Proposed orders sought” is the financial agreement referred to in the Application for consent orders in the Family Court of Australia.

Divorce

There is also in evidence a certificate of divorce between Mr Meissner and the deceased. It was provided by Ms Lindsay’s solicitors under cover of a letter dated 13 August 2014 to the solicitors for Mr Meissner, and was apparently found with her papers after her death. It certifies that the Federal Magistrates Court of Australia made a divorce order on 5 August 2008, and that the order took effect from 6 September 2008.
Mr Meissner gave the following evidence in cross-examination concerning the certificate of divorce (T 44.22 to 45.1):
Q. Do you agree that you were divorced in 2008?
A. No, no. This is a complete fake. I don't live and I've never lived at Refinery Drive, Pyrmont to start with, and I had the police investigate this.
Q. It says at the bottom Sharron Dale Meissner
A. That's right.
Q. 202/40 Refinery Drive, Pyrmont.
A. Correct.
Q. Why are you saying you never lived there?
A. Because I didn't.
Q. This document doesn't suggest you ever did live there.
A. The other document I have does.
Q. So what is the fake? Is the certificate the fake?
A. I was never divorced. The first I knew about it is when I got a letter from Mr Toltz. I think it was their lawyers or their lawyers.
Q. You agree, don't you, that you were divorced? There is a certificate of divorce there, isn't there?
A. This is, yes. It will be overturned. I will be appealing it.
Q. What do you say, you didn't know anything about the divorce?
A. No. The JPs are interviewed by the police, "Never seen her in my life."
Q. Never seen who in your life?
A. The JP that witnesses my signature. Sharron signed them. It's my
signature and hers. The police are aware of that.
He then continued (T 50.27):
Q. But you were divorced?
A. I was not divorced. How was I divorced?
I find Mr Meissner’s evidence that he was not divorced from the deceased, and that he did not know that he was divorced, incredible. There is nothing in the evidence that would support a conclusion that the deceased was able to obtain a divorce from the Federal Magistrates Court of Australia without notice having been given to Mr Meissner of the application. It is also highly improbable that, if by some means the deceased was able to divorce Mr Meissner without his knowledge, she did not inform Mr Meissner of the divorce at any time during the following five years up to the time of her death.

For completeness, I should mention that there are also in evidence documents that appear to have been prepared for the purpose of the deceased making an application to the Family Court of Australia in 1985. The documents apparently came with the papers left by the deceased at the date of her death. It does not appear that the documents were ever completed, signed or filed. Further, it is also not clear whether they are copies of draft documents that were filed in the Family Court.
The documents consist of three apparently draft affidavits in support of an application by the deceased for injunctions, and one draft application for injunctions. The draft application seeks orders that Mr Meissner return certain property, and that he be restrained from assaulting, molesting or otherwise interfering with the deceased. One of the draft affidavits contains an assertion that Mr Meissner and the deceased separated on 24 December 1984.
While it may be of some significance that the deceased saw fit to retain these documents, there is no evidence that they were signed or filed, or used for any purpose. They are so remote in time, that I have not placed any real significance upon them. In my view, there is no need to do so, given the existence of the later documents concerning the separation of Mr Meissner and the deceased, the division of the matrimonial property, and the divorce.
Mr Meissner did not mention his separation and divorce from the deceased in his 26 April 2015 affidavit. As I have said above, in his first affidavit, he claimed to be the husband of the deceased. He alluded to the separation indirectly, by saying in par 17 that, up until her death, he saw the deceased at least four times per month, and that she would come to Fairfield House at least once per month. He said in par 18 that, from 10 February 2010 up to the date of her death, the deceased and he remained in regular contact.
The evidence is not sufficient to enable me to make a positive finding about whether the deceased saw Mr Meissner with any frequency after the date of the divorce.
Mr Middleton gave evidence that, over approximately the last 10 years, he attended Fairfield House every two to three weeks. Sometimes Mr Meissner would be there by himself, and other times the deceased would be there as well. Mr Quayle said that he would go to Fairfield House every two weeks or so, but at other times he might not go there for months. He said that sometimes Mr Meissner would be at the house by himself, and at other times the deceased would be there too. Neither witness actually gave evidence of the frequency with which they saw the deceased at Windsor, because each used the word “sometimes”.
There was a considerable amount of evidence in Ms Lindsay’s case, including statements made by the deceased, which suggests that it is improbable that the deceased would have spent much time with Mr Meissner.
Regardless of whether or not the deceased spent any significant time with Mr Meissner after the divorce, I am satisfied that, in his evidence, Mr Meissner has knowingly and falsely claimed that he remained the husband of the deceased at the date of her death, for the purpose of bolstering his claim for the validity of the 2010 document; or alternatively, in order to support his claim for a family provision order.

Transfer of Fairfield House

At T 42.17, Mr Meissner was shown an undated transfer of Fairfield House from the deceased to Mr Meissner. The consideration was expressed as follows: “The transferor acknowledges receipt of the consideration pursuant to Orders made in the Family Court of Australia dated 5 April 2004 pursuant to Plaint No PAF 1569/2004”. The transfer appears to have been signed by Mr Meissner and the deceased.
There is in evidence a receipt for the transfer signed by Mr Meissner, but the receipt is not dated.
At T 43.22, Mr Meissner denied that he was given the transfer by the deceased in 2004.
As will be seen, this evidence by Mr Meissner is contradicted by evidence given by Ms Lindsay.

Correspondence following the death of the deceased

On 12 September 2013, about one month after the deceased’s death on 7 August 2013, Mr Meissner’s solicitors, Breene and Breene, wrote a letter on behalf of Mr Meissner to the solicitors for Ms Lindsay, Toltz Lawyers. The letter included:
We act for Mr Ladislaus (Joe) Meissner in relation to the above estate. We understand that you act for Ms Pamela Lindsay, the executor of the deceased’s last will and testament (“the Will”).
The purpose of this correspondence is to notify you that Mr Meissner may have a claim against the deceased’s estate. We request that you keep us informed of any application for probate in relation to the estate.
We would be obliged if you could please provide is with a copy of the Will at your earliest convenience.
It is entirely improbable that Breene and Breene would have written to the solicitors for the executor to notify her of a possible family provision application, if they had known of the existence of the 10 February 2010 document propounded by Mr Meissner as the deceased’s last will and testament.
The following exchange occurred in cross-examination (T 48.43 to 49.1):
Q. She gave you a copy of your will and her will?
A. Yeah, that's not unusual. She would be taking the originals, always did.
Q. What happened to the copy of your will?
A. I gave it to the lawyers in the end and I gave a copy to this young lady there in due course at the end of 2013, like I said before.
Q. Just hang on. You're saying you gave a copy of your will to which lawyers?
A. Breen & Breen.
Mr Meissner claimed that he gave his 10 February 2010 will to his solicitors “at the end of 2013”.
Toltz Lawyers replied on 27 September 2013, and advised that any claim by Mr Meissner would be strenuously resisted. The letter asked whether Breene and Breene were aware that Mr Meissner and the deceased were divorced, and stated that Toltz Lawyers held the certificate of divorce, consent orders and terms of settlement.
Breene and Breene wrote a further letter to Toltz Lawyers on 2 October 2013. They asserted that Mr Meissner was an eligible person within the meaning of s 57 of the Succession Act 2006 (NSW), and that he was entitled to a copy of the will under s 54(2)(g) of that Act. They requested that a copy of the will be provided by 16 October 2013.
It is also highly improbable that Mr Meissner’s solicitors would have foreshadowed a family provision application, if they had known at that time that Mr Meissner claimed that he was the residuary beneficiary under the last will and testament of the deceased.
Toltz Lawyers provided a copy of the deceased’s 17 December 2008 will to Breene and Breene on 4 October 2013, describing it as “the last will and testament of Sharron Dale Meissner”. Mr Meissner was thus provided with a copy of the 2008 will before, as will be seen, Mr Meissner first provided the 2010 document to his solicitor.
On 19 November 2013, Breene and Breene requested that Toltz Lawyers provide them with the certificate of divorce, consent orders and terms of settlement.
Ms Lindsay appeared to change solicitors to Tony Davis & Associates on about 26 November 2013.
The last letter written by Breene and Breene to Tony Davis & Associates was dated 26 November 2013. The letter did not mention the 2010 document.
The first mention of the 2010 document was in a letter from Breene and Breene to Tony Davis & Associates dated 31 July 2014. The letter asserted an understanding that Mr Meissner had previously provided a copy of the 2010 document to Ms Lindsay. It canvassed whether Ms Lindsay would contest that the 2010 document be admitted to probate.
On 5 August 2014, Toltz Lawyers advised Breene and Breene that they were still acting for Ms Lindsay, and Ms Lindsay sent an email to Breene and Breene on the same date to confirm that fact.
In their 5 August 2014 letter, Toltz Lawyers denied, on behalf of Ms Lindsay, that she had ever received a copy of the 2010 document from Mr Meissner.
On 7 August 2014, Breene and Breene, in a letter to Toltz Lawyers, advised that Mr Meissner denied executing, or having any knowledge of the application for divorce filed on 3 July 2008.

Evidence of Mr Davis, Mr Meissner’s solicitor

Mr Matthew Davis, a solicitor in the employ of Breene and Breene, who acted for Mr Meissner in these proceedings, swore an affidavit on 7 August 2014. Mr Davis said, in par 3, that Mr Meissner provided him with a copy of the 2010 document on 25 July 2014.
Mr Davis was asked in cross-examination when Mr Meissner first told him about the existence of the 2010 document, and Mr Davies replied that he believed it was the last week of October 2013. Mr Davis received a copy of the deceased’s 17 December 2008 will on 4 October 2013. He wrote two letters to Toltz Lawyers after the last week of October 2013; being his letters dated 19 and 26 November 2013. He was not asked, and he did not offer any explanation as to why he did not mention, in either of those letters, that he had been instructed by Mr Meissner that the deceased had left a will that was executed after 17 December 2008.
He also said that Mr Meissner provided him with a copy of his own will at some time between the swearing of Mr Meissner’s two affidavits; that is, between 26 April 2015 and 26 September 2015. Mr Davis was not asked to give any explanation for why Mr Meissner’s will was not put in evidence.

Cross-examination of Mr Meissner concerning the correspondence

Mr Meissner was cross-examined concerning a visit he made to Ms Lindsay at her office after the deceased’s funeral, and the correspondence between the solicitors that has been considered above.
The following is an edited version of that cross-examination at T 50.15 to 57.18:
Q. Let's just look now at your visit I think you said you went to the funeral?
A. Yes, I did.
Q. And I put it to you look at 20 I put it to you that that statement that you attributed to the defendant wasn't said?
A. I didn't know Pamela Lindsay. She came up to me and told me she was the lawyer and she also said, "Please let me know if I can do anything in relation to Sharron's estate." That's exactly the words she used. I didn't know her from a bar of soap. I thought she was some woman that I met at a party.
Q. I put it to you that she didn't say that. Why would she say anything to you about helping in relation to Sharron's estate?
A. Because I was her husband. I certainly didn't recognise her, I tell you that now. She came straight up to me.
…
Q. I put it to you she didn't come to you.
A. She did. At the funeral she did.
Q. She didn't say, "Let me know if I can do anything in relation to Sharron's estate."
A. Yes, she did. Yes, she did.
…
Q. Let's look at page 34. You went to Tony Davis & Associates in Neutral Bay. They are solicitors.
A. Yes, because Pamela Davis (as said) gave me her card.
Q. Pamela Lindsay.
A. Sorry, Pamela Lindsay gave me her card and she said she was now at Neutral Bay, not at Archer Street…
Q. No, apparently it was a Toltz Lawyers.
A. Yeah, that's right. I remember Toltz, yeah.
…
Q. Court book 161, I put it to you that you had a meeting with Pamela Lindsay in the offices of Toltz Lawyers on 27 August?
A. Yes, it would have been 27 August. I have a diary note on that.
Q. And that you produced to her a photo of you and Sharron when you were married?
A. In 82. I probably would have, yes.
Q. And you said to her you had been separated for many years?
A. I didn't say that at all.
Q. And you said you had been divorced since 2008?
A. I didn't say that either.
Q. You said that you were seeing each other?
A. Yeah, and getting on well, yeah, that would be right.
Q. But you didn't know she was very unwell?
A. I didn't say that at all. I knew she was unwell. I was injecting with morphine.
Q. You asked her if you were in the will and she said, "No, you're not."?
A. No, wasn't she wouldn't discuss the wills.
Q. You said that you were surprised you weren't mentioned in the will?
A. No, I didn't say that at all.
Q. Well you went there principally to get a copy of the will, didn't you?
A. I wanted to know what happened to the company records because Courtneys said they picked them up. I wasn't sure if they or the family. That was my main concern the company records because they owe me a lot of money from her company that hasn't been accounted for.
…
Q. And you did not give Pamela Lindsay a copy of the 2010 document?
A. I certainly did…
Q. You did not give her a copy of the 2010 will?
A. I believe I did.
Q. And in fact it would seem that you didn't give a copy of that will to anyone in these proceedings until you gave it to Mr Davis in July 2014?
A. Asked for it. He asked for have I got a did I track an original or we tried to get an original, we couldn't. But he asked for it again, I don't know why. But he already got it. I wouldn't ask him to act for me unless I had it. What's he acting for?
…
Q. This is Mr Breen. Now Mr Breen, he's a partner at Breen & Breen is he?
A. John Breen, yes. But I don't know whose signature, that looks like Matt Davis's signature.
…
Q. Anyway he says at page 38 in the letter to Mr Toltz "We understand that you act for Pamela Lindsay, the executor of the deceased's last will and testament". Why would he say that if you
A. No idea.
Q. if you had given him your February 2010 will?
A. Because Pamela Lindsay also said Steven Smith doesn't want anything to do with this will and I assumed that Steven Smith got her to do everything. That's what I assumed.
Q. The next one is next paragraph says, "Mr Meissner may have a claim against the deceased estate"?
A. Well what I didn't see these copies at the time, it's not addressed to me, its addressed to Gerard Toltz, after he sent a defamatory letter.
Q. Then he you said, "We'd be obliged if you could provide us a copy of the will at your earliest convenience" but you had a copy of the will?
A. Of what, mine?
Q. Of the will. What you call the will of the deceased?
A. No, I didn't have one for 2008. I got this when he sent it, sometime later.
Q. Here's your solicitor asking Mr Toltz for a copy of the will, the last will of the deceased. Page 38?
A. Yes, I see it. Page 39 I'm going to. What's happening
Q. 38.
A. Yes. What do you want me to refer to?
Q. Well I'm suggesting to you that you hadn't given Breen a copy of the 2010 document
A. No, I gave that to them, including notes. I give them a lot of information that we can't even find.
Q. That you didn't know what the last you hadn't seen the last will of the deceased, that's why you wanted to see it and that's why Mr Breen was writing this letter to Mr Toltz on 12 September?
A. I've got no idea, I don't know what you lawyers do.
Q. Just go to the next one, page 39.
A. Yes, I've got that.
Q. This is Mr Toltz writing back to Mr Breen. He says, "We refer to your fax of 12 September", that's the one we just looked at. He says, "The claim will be strenuously resisted. As you are aware the deceased and your client were divorced and we hold a copy of the following documents. Certificate of divorce. Consent orders in terms of settlement." That's what he says?
A. Mm hmm.
Q. Then look at court book page 40?
A. Yes.
Q. He says, this is Mr Toltz writing back to Mr Breen
A. Breen writing back to Toltz you mean, second
Q. Mr Breen writing back to Mr Toltz. Second paragraph, "Mr Meissner is a 'eligible person' within the meaning of s 56 of the Succession Act"?
A. Yes.
Q. "And therefore may apply to the Court for a family provision order in respect of the estate of the deceased. By reason of his status is an eligible person, Mr Meissner is entitled to be provided with a copy of the will."?
A. Well what do you want me to say about that, I'm not a lawyer?
Q. Well Mr Meissner, at this stage you didn't you weren't quite sure what was in the will except you weren't in it?
A. How would I know that?
Q. You thought you might be an eligible person under the Succession Act and you were considering make a claim for provision?
A. I was advised by Breen & Breen. When they put the initial summonses on they wanted to do it both ways. They wanted it to be a will first and then the family provisions.
Q. This is not a letter from Mr Breen saying look we have our client is the beneficiary of the last will and he's the major beneficiary under the last will and he's going to make a claim he's going to seek a grant of probate or he's going to make a claim under the will?
A. Why are you asking me? Why aren't you asking Breen & Breen why they sent this letter? I can't comment on this, it's not to me.
Q. Well, Mr Meissner, I'm suggesting to you that your instructions at that stage were that you didn't know what was in the will and you got some advice that you might be
A. Well why don't you ask Breen & Breen. The proposition you put to me is outrageous, it's not true. Ask them what they meant, I've got no idea about all these provisions.
Q. What what proposition is outrageous?
A. Well you suggesting that I knew about it straightaway for some reason.
Q. About what?
A. About the will. The 2008 will I guess you're trying to say.
Q. No, I'm not suggesting that. Please, Mr Meissner, I'm not, I'm just suggesting to you Mr Meissner
A. What are you suggesting?
Q. That you were not given a copy of the 2008 will by Mrs Lindsay when she went when you went to see her?
A. No, she took copies of me and give me nothing else.
Q. But she told you you weren't in the will?
A. No, she didn't. She didn't tell me at all.
Q. That's why Breen & Breen wrote to Toltz to get a copy of the will?
A. Why don't you ask them, I don't know. I can't comment on that. You're both solicitors.
Q. Court book page 34, paragraph 31.
A. Paragraph?
Q. 31.
A. 31, yes.
Q. Last sentence. Well the whole paragraph reads "After I returned to Australia on 5 October 2013", you'd been away for a month
A. That's true.
Q. "I read the letter from Toltz lawyers to Breen & Breen dated 27 September. That was the first time I became aware of any divorce or other proceedings in the Family Court."?
A. Correct.
Q. It's not correct, because you were aware of the property proceedings in the Family Court because you had been to the Family Court in 2004 and you had made an application.
A. What, for a divorce?
Q. For other proceedings in the Family Court?
A. Okay, you're going to split straws. Okay, right. Yes, that's probably ambiguous, that one, but it specifically referred to a divorce. I never knew about it until then.
…
Q. Mr Meissner, I put it to you that you are not telling the truth?
A. I don't tell lies.
Q. That you did not see Sharron Meissner sign a will at Fairfield House on 10 February 2010?
A. Well, you're totally wrong. You weren't there, I was there.
Mr Meissner contradicted the evidence of his own solicitor when he claimed, in the course of this cross examination, that he provided the 2010 document to Mr Davis at a date earlier than 25 July 2014; Mr Davis’ correspondence with Ms Lindsay’s solicitor is plainly inconsistent with Mr Meissner’s evidence. It is inconceivable that Mr Davis would have foreshadowed the family provisions claim, or requested a copy of the deceased’s will, if he had known of the terms of the 2010 document.

Application of the rule in Browne v Dunn

The principal submission made on behalf of Mr Meissner in oral closing submissions was that the court is obliged to accept the evidence of Messrs Meissner, Middleton and Quayle, because it was not sufficiently put to them, in accordance with the rule in Browne v Dunn (1894) 6 R 67, that their evidence concerning the execution of the 2010 document by the deceased was not truthful.
The cross-examination of Mr Meissner included the following (T 46.46 to 48.30):
You say here you're referring to a conversation you had with Sharron in 2009, 2010, about wills?
A. Yes.
Q. I put it to you that conversation did not take place?
A. Well you're totally wrong.
…
Q. I put it to you that she didn't say, "I have our wills, I want to come over to Fairfield House so we can sign them."?
A. Where does it say that?
Q. That's paragraph 7.
A. C?
Q. Page 32, paragraph 7?
A. Paragraph C?
Q. Seven?
A. Seven, yeah. Yes, she would have said words to that effect.
Q. Why would she have your will?
A. Why? Because she made them up. I can't type. I can't use a computer, I'm a one fingered typer. She was very good at typing and things like that. She's a control freak, she always wanted to do it her way.
Q. I put to you that that conversation at 7 just didn't happen?
A. You're totally wrong.
…
Q. I put it to you that the paragraph at page 33, paragraph 10, she didn't say anything to Brad and Terry about doing wills?
A. Yes, she would have said that. To the best of my recollection we both actually said it. We were going to get the hired hand and Sharron said, "No, I don't want the hired hand," who lives on the premises, and my neighbour, a fellow called Bernie Bennett. These two boys were just available, so they were it.
…
Q. I put it to you that you didn't see Sharron sign the will?
A. Sorry?
Q. I put it to you that you did not see Sharron sign a will on the 12th in paragraph 12?
A. I think it was the 12th, because the will said it was the 12th.
Q. No, I don't want to confuse you there.
A. You are.
Q. I said 12. I meant, I put it to you that as you say in paragraph 12, you did not see her sign a will?
A. Yeah, she signed them.
Q. Signed them. What's them?
A. There's several several she signed a couple of wills, you know. She wanted another copy or something, I don't know what she did, but I saw her actually sign the will which the two boys witnessed. Otherwise how could they witness it? I can't witness my will or her will. (emphasis added)

Middleton was cross-examined as follows (T 62.30 to 64.13):
Q. Now can you answer my question please, are you a close friend of Mr Meissner?
A. Yes.
Q. I put it to you that in and this at court book 18. That in on 10 February 2010 you did not see Sharron Meissner at Fairfield House, Windsor, because she wasn't there?
A. Really? Who did I sit next to?
Q. I'm just putting it to you, do you accept that or you don't know or you deny it?
A. That's not correct.
Q. I put it to you that at paragraph 5 Mr Meissner did not say to you "Would you mind witnessing our wills?"?
A. He did say that. Maybe not those words exactly but
Q. Words to the effect of, that will do. And you asked to keep a copy?
A. That's right.
Q. But it was none of your business. Why would you want to keep a copy of someone else's will?
A. No, I asked for a copy of what I signed, which it was a will, fine. Because there's also a young son involved as well remember and I'd known him from the day he was born.
Q. Right, the young son is who?
A. Joseph.
Q. He's the son of Joe Meissner and Michael Chi?
A. Michelle Chi, yes.
Q. Michelle Chi. You have a close relationship with him?
A. Yes.
Q. You feel some love and responsibility for him?
A. Yeah, he's Joe's son.
Q. You like to look after his interests?
A. Absolutely.
…
Q. I put to you that you didn't see her sign a will document that day?
A. Yes, I did see her sign it. I actually signed last.
Q. You actually what?
A. Signed last. Terry signed before me.
Q. I put it to you that you were not given a copy of the document by her that day?
A. I was. Sharron didn't seem very worried about it. She wasn't worried at all.
Q. I put it to you that you are mistaken, that it was not a will document that you saw that day being signed, if you saw anything being signed?
A. It was a will. (Emphasis added)
Mr Quayle was also cross-examined as follows (T 59.42 to 61.9):
Q. No, Mr Quale. Look at the order of things. You have got paragraph 4 you said you arrived there around midday. You had a coffee and we all spoke for a while. Then you said, presumably while having the coffee, there was a conversation that you heard and Joe said something to you. That's at 5. Can you see that?
A. Yes, yeah, that's basically it was, you know is that could you sign, we're doing our wills.
Q. I put it to you that he didn't say that?
A. Sir, I was there so.
…
Q. You say at 6 she returned with a piece of paper that contained her last will and testament. How do you know it was her last will and testament?
A. Because we were told that's what we were signing for. That's what's our signature for.
Q. But you didn't read it? You were just told that's what it was?
A. Yeah.
Q. You say you saw her sign it and hand it to Brad, "Brad signed it and wrote his name on the document. After signing it Sharron copied it and provided a copy to Brad and I. I don't know where my copy is." I put it to you that you weren't given a copy of the document by her?
A. Sir, as I said before, no disrespect, obviously you weren't there.
…
Q. And your copy of the document was cleaned out when your wife and you separated?
A. Most of my property got cleaned out.
Q. You don't have any note or anything which you can remember that around that time that helps you remember what happened on that day?
A. No, sir. The I got a copy of the statement and a copy of the will that we signed. It was given to me by the solicitor that we went and seen in August, which I have with me now.
Q. When was the first time that you were asked to think back and give an account of what happened at Fairfield House in February 2010, first asked by anyone?
A. August when we went and seen the solicitor.
Q. About four and a half years after?
A. Yeah.
Q. I'm putting it to you that your memory is failing you, Mr Quale. At four and a half years down the track you are inaccurate in your recollection of events.
A. I'd be honest with you, sir. I'm 70 years of age. My memory is not as good as when I was 16. Yes, you're probably right on that… (Emphasis added)
In my view, Mr Meissner has not made good his claim that counsel for Ms Lindsay did not adequately put to the three witnesses that their evidence concerning the alleged circumstances in which the deceased executed the 2010 document was false, and that the deceased did not make a will on 10 February 2010. That conclusion is supported most strongly by the cross-examination of Mr Meissner and Mr Middleton; but I am satisfied that it was made sufficiently clear to Mr Quayle that his evidence was also challenged.
It must be borne in mind, in considering the application of the rule, that Ms Lindsay clearly disputed that the deceased ever executed the 2010 document, on the basis that the evidence given by the three witnesses in that regard was simply false. In her written opening, which was served before the commencement of the hearing, Ms Lindsay submitted that: “There is no credible evidence that the deceased executed a will” on 10 February 2010, and that the evidence of Mr Meissner, Mr Middleton and Mr Quayle should not be accepted for many reasons, and she listed 12 of those reasons.
There can be no suggestion that Mr Meissner’s legal representatives were not fully aware of the attack that was going to be made on the evidence of the three witnesses, or that there has been any unfairness to them in the way that Ms Lindsay has asked the court to decline to accept their evidence: see JD Heydon; Cross on Evidence (10 ed) [17445] and the cases referred to in footnote 707.
So far as Mr Middleton’s and Mr Quayle’s evidence is concerned, both gentlemen were essentially strangers to the relationship between Mr Meissner and the deceased. If they were present at Fairfax House at the time they allege they witnessed the deceased execute the 2010 document at her request, that was entirely a matter of happenstance. Apart from knowing that both gentlemen were friends of Mr Meissner, the court knows nothing about them. Ms Lindsay was confronted with the need to submit that their evidence was false; and in reality, a fabrication. However, because of their accidental connection with the events in dispute, there was virtually no material available to Ms Lindsay upon which she could base a detailed cross-examination of those witnesses. Realistically, her counsel could do little more than put to the witnesses that what they said happened, did not in fact happen.
This has always been a case where the court would be required to decide whether or not it should accept the evidence of Mr Meissner, Mr Middleton and Mr Quayle, having regard to the probability of their evidence being correct in the light of all other objective circumstances.
I should record that both Mr Middleton and Mr Quayle gave their evidence in cross-examination in a relatively forthright way. They stood by their evidence. There was nothing particular in their demeanour that would justify the court in declining to accept their evidence. In reality, because of the limited involvement that they had in relevant events, the manner in which they gave evidence in cross-examination is of little significance or assistance in deciding the crucial factual questions in these proceedings.

Mr Meissner’s credit

Mr Meissner accepted in cross-examination that, on 10 April 1992, he was convicted of attempting to pervert the course of justice in the District Court in Sydney; that he was given a sentence of 12 months imprisonment; and that he served nine months.
Mr Meissner put into evidence, as an attachment to his first affidavit a document dated 3 April 1981, headed “Crime Intelligence Squad”, which purported to list a significant number of criminal activities in which Mr Meissner was alleged to have been involved. Mr Meissner said that the document “is not a genuine criminal intelligence report. Rather, it was a work of fiction written by my political opponents in the 1980s as part of an attempt to smear me in the Sydney media”.
I have not found it necessary to attach any weight to this evidence in assessing the credibility of Mr Meissner’s evidence. While Mr Meissner’s conviction involved a serious case of dishonesty, the events occurred about a quarter of a century ago, and I have found that the question of Mr Meissner’s credibility can be dealt with properly having regard to more current evidence.
Mr Meissner displayed a moderate degree of combativeness in his response to questions in cross-examination. However, I have not drawn any adverse conclusions concerning the credibility of Mr Meissner’s evidence as a result of his demeanour in cross-examination. I have, instead, acted upon the content of his evidence, in the context of his evidence as a whole.
I have not found the evidence given by Mr Meissner to be credible in relation to a number of crucial issues in this case.
My principal basis for that finding may be found in the evidence given in par 1 of his first affidavit, in which he swore that he was the husband of the deceased. That evidence was in fact false, as I have found above. Further, I do not accept that the deceased could have divorced Mr Meissner in 2008 without that fact having come to his attention as a result of being given notice of the divorce proceedings, or by some other means, in the following years up until the death of the deceased. The significance of the falsehood is profound, because, apart from its extraordinary improbability, it demonstrates that Mr Meissner has concocted a story that would, if accepted, underpin his claim that the deceased had a reason for leaving the whole of her residuary estate to him by a will made on 10 February 2010.
Mr Meissner compounded the effect of this evidence by denying, in cross-examination, that he had been divorced from the deceased, and that he was aware that the deceased had obtained an order for divorce. Further, the whole tenor of his evidence was to create a false appearance that his continuing relationship with the deceased was much more regular and close than the objective evidence can sustain.
The contradiction in the evidence between Mr Davis and Mr Meissner concerning when Mr Meissner first gave Mr Davis a copy of the 2010 document is also very damning of Mr Meissner’s credibility.
I accept Ms Lindsay’s evidence concerning Mr Meissner having been given a copy of the transfer of the deceased’s interest in Fairfield House to Mr Meissner in 2004, and reject Mr Meissner’s evidence to the contrary. The objective evidence does not explain how the transfer could have come into Mr Meissner’s possession many years later.

Ms Lindsay’s evidence

Ms Lindsay gave evidence that she has been employed by Tony Davis & Associates from 1991 to date, in a paralegal capacity. She first met the deceased in the late 1990s, when she became a client of the firm in relation to matters arising from the deceased’s business.
In her affidavit sworn 19 June 2015, Ms Lindsay swore that in 2004, on the instructions of the deceased, she prepared a transfer of the deceased’s half interest in Fairfield House to Mr Meissner. She said that both the deceased and Mr Meissner attended her office at Chatswood and signed the transfer. She said that it was her recollection that the transfer was handed to Mr Meissner, but it could not be registered, as the title to the property was encumbered by several mortgages.
Ms Lindsay said that, at the time the transfer was executed, the deceased said to her: “I wish to sever the last tie I have with Joe”.
Ms Lindsay said that, at the time when she prepared the deceased’s 17 December 2008 will, the deceased said to her: “Yes, I trust you to look after my estate and I am finally divorced.”
Ms Lindsay annexed to her affidavit a copy of the deceased’s diary entry for 10 February 2010, which records an appointment for a meeting with Mr Tim Kierath at 12 noon on that day. I will refer further to this meeting when I consider Mr Kierath’s evidence below.
Ms Lindsay also annexed a typed but unsigned document that she found with the deceased’s records, which was headed by the three following statements, written in capitals: “Divorce statement dated 13.6.02”; “Prepared by Sharon Meissner”; and “My husband and I separated in August 2000”. The document contains many statements consistent with a total breakdown of the relationship between the deceased and Mr Meissner.
Ms Lindsay was cross-examined about a file note dated September 2013, which she prepared in relation to a meeting with Mr Meissner on 27 August 2013.
The file note contains an entry: “Joe was surprised he was not mentioned in the Will”.
Ms Lindsay denied that, when she wrote the file note, she did so with a view to making Mr Meissner appear to be an undesirable person. She said (T 92.29): “… For me that was a true written report of the meeting, and I was surprised by some of the things that were said, and I’ve certainly put that down in hard copy”.
Ms Lindsay appeared to me to be an entirely credible witness. The attempt made in cross-examination of her to establish that she was antagonistic towards Mr Meissner and acted with a view to disparaging him failed.
Ms Lindsay admitted, in relation to the evidence given in par 14 of her affidavit, that the purpose of Mr Meissner’s visit to her on 27 August 2013 was to obtain a copy of the will dated 17 December 2008, and added that Mr Meissner did not actually state the date of the will. She said that Mr Meissner said to her: “I want a copy of the Will.” After she told him that he was not entitled to a copy of the will, because he was not a beneficiary, she said that he replied: “Her friends made her do it.”
I accept Ms Lindsay’s evidence.

Mr Kierath’s evidence

Mr Tim Kierath swore an affidavit on 16 December 2014, which was read in Ms Lindsay’s case. Mr Kierath operated a business at 8/106 Old Pittwater Road, Brookvale. He retained the deceased’s services in 2010, for the purpose of obtaining television advertising for his company’s business.
Mr Kierath said that he met with the deceased on 10 February 2010, for the purpose of discussing the planned advertising, at her office at 50 Rocklands Road, Crows Nest, at 12 noon. It was his recollection that the duration of the meeting was for at least one hour, and maybe up to one and a half hours.
He annexed to his affidavit a copy of his diary for 10 February 2010. On the line for 12 noon there are the following words: “12.00 Sharron Meissner Total Retail Advertising 50 Rocklands Rd, Crows Nest 2065 9900 9499 0411 632611”.
Mr Kierath also annexed a copy of a one-page email from the deceased to himself sent at 4:47 PM on 10 February 2010. The email contained an explanation of how the proposal for the deceased to place advertising for Mr Kierath’s business should proceed.
The following cross-examination occurred concerning the meeting between Mr Kierath and the deceased:
(At T 105.20)
Q. It would be fair to say that over the years since 2010 your recollection as to what time you actually met with Sharron Meissner becomes a bit of a blur?
A. I would say that if the meeting time from midday had have been changed, I would have changed that in my diary.
Q. Not always?
A. Well, pretty much I always would change the date that I've got in the time in my diary if the meeting had changed, and I can remember the building, I can remember Sharron's office, and I think there was only one other person there that I saw on that day. So I know that the meeting occurred. Had I not have had the diary entry and Sharron's confirmation that the meeting had taken place, and you said, did you meet on that day, I would have to say, I don't remember whether it was that day or not. But my confirmation in my affidavit was based on the fact that the entry was in my diary, I didn't change it, and then I got the confirmation from Sharron that afternoon.
(At T 106.24)
Q. You have no real memory as to how long the meeting took, do you?
A. Yes, I do. I would have said it was a minimum of an hour and probably an hour and a half.
Q. What do you base that on?
A. Well, because I've done had a lot of these sorts of meetings over the years and they never last less than one hour.
(At T 106.41)
Q. I want to suggest to you that perhaps this meeting you had with Sharron Meissner didn't go for more than an hour, but was probably a good deal less than that?
A. Well, you could suggest that.
Q. I suggest to you it was probably a conversation you had with her, and that's all it was.
A. Yes, well, you can suggest that and I can tell you that that didn't happen.
(At T 107.23)
Q. I suggest to you that that was because the meeting didn't end much before 4.47pm. Is that a reasonable inference, do you think?
A. No, not at all. Not in my view, anyway.
Mr Kierath was an independent witness, who appeared to be credible in the way he gave his evidence. He acknowledged that he was relying upon his diary entry and the email that he received from the deceased. I have no reason to doubt his evidence that, if the time for the meeting with the deceased had been changed from 12 noon on 10 February 2010, he would have altered his diary. Mr Kierath did appear to have some independent recollection of the meeting occurring, as he met with the persons who arranged television advertising for his company relatively infrequently.
If Mr Keitath’s evidence concerning the time and length of his meeting with the deceased is correct, then it is highly improbable that the deceased could have been at Windsor at the time Mr Meissner and the witnesses to the 10 February 2010 document claim that she was there.

Dr Bryant’s evidence

Dr David H Bryant, an Associate Professor of Medicine, and consulting respiratory physician, at St Vincent’s Hospital, gave evidence by affidavit sworn on 18 December 2014.
Dr Bryant was the deceased’s respiratory physician until the time of her death. He gave evidence that he saw the deceased as a patient at his rooms on 10 February 2010. Dr Bryant’s appointment books from that period have been discarded. His lung function test computer records confirm that he performed a lung function test on the deceased on 10 February 2010. The tests were done at 9:20 AM and 9:49 AM. After the deceased saw Dr Bryant, he asked her to go down to the pathology department to have blood tests. The pathology report shows that the blood was collected at approximately 9:50 AM.

The RTA statement

Ms Lindsay relied upon the deceased’s RTA statement for use of electronic toll facilities, which shows that, on 10 February 2010, the deceased used the Cross City Tunnel at 10:22 AM, and the Harbour Bridge at 5:50 PM. Ms Lindsay categorised the first of these entries by making the following submission: “Her car was recorded at the Tollgate heading towards North Sydney at 10:22 AM, and there is no evidence in the electronic toll statement that she used a toll road in the westerly direction of Windsor”.
There is no evidence that establishes that the deceased was using the Cross City Tunnel for the purpose of going to North Sydney; or the time it would take to drive between St Vincent’s Hospital at Darlinghurst and Windsor; or that the deceased would have had to incur an additional toll in travelling from Darlinghurst to Windsor. There may be grounds for suspecting that it would be difficult for the deceased to get to Windsor from the Cross City Tunnel at 10:22 AM, in a time that is consistent with the evidence given on behalf of Mr Meissner as to the time when she executed the 10 February 2010 document, but I do not accept that the evidence is sufficiently complete to justify the court in making a finding that the deceased could not have reached Windsor by the suggested time.
The evidence given by Mr Kierath is a much more sound basis for doubting that the deceased could have been at Windsor at the time claimed by Mr Meissner. The probability is that the deceased used the Cross City Tunnel in order to return to her Crows Office to carry on her business before her expected meeting with Mr Kierath at noon.

Mr Smith’s evidence

Mr Stephen Smith, the deceased’s brother, swore an affidavit on 26 March 2015.
He said that he was aware from his regular contact with the deceased that she and Mr Meissner separated in 2002. He said:
6. I recall various occasions, the precise date of which I am now unable to recollect, after their separation, when the deceased said words to the following effect to me:
“I have no feelings for Joe and if it wasn’t for Windsor (Fairfield House) would have nothing to do with him.”
And
“…around February every year I have to chase up Joe for the figures for Fairfield House to complete my tax returns.”

Mr Smith recalled discussing the deceased’s will with her in 2008, when she had said that she wanted him to be her reserve executor, and added: “If anything happens to me I want all my nieces and nephews to benefit from me, rather than just Kerry (our sister) and you.”
Mr Smith gave the following evidence concerning discussions with the deceased about her will:
8. I further recall that I had a discussion with the deceased about her will and investments in great detail, in the course of 2010 and 2011, when we were on holidays together. She said words to the following effect to me on an occasion, the precise day of which I am now unable to recollect:
“Stephen, you are the only person who has any idea what I’m worth other than my accountant.”
She also said words to the following effect:
“All my nieces and nephews will love their Aunty Sharron when I’m gone.”
I’m aware that the deceased said the same words to my wife Marilyn and to my children, David, Carly, Amber and Ben in my presence. I recall the last time she said such words to my daughter Amber in my presence was in May 2013.
Mr Smith said that the deceased never mentioned to him, on any of the many occasions that the deceased had spent time with him the existence of a testamentary document that left anything to Mr Meissner.
On Tuesday 6 August 2013, the deceased told Mr Smith that her will was on her desk in the middle shelf of her office organiser, and that: “All my nieces and nephews will love their aunty Sharron when I die.” Mr Smith said that the deceased was lucid and her memory was not impaired in any way during her last week in hospital.
Shortly after the deceased passed away on 7 August 2013, Mr Smith went to her apartment with his wife and daughter, Amber. He located the envelope with the deceased’s handwriting on it, which contained a copy of her will dated 17 December 2008 in the deceased’s office organiser, as she had indicated. He examined all of her documents and files and found no record of any other will or testamentary document.
Apart from answering affirmatively to a question of whether the signature on the 10 February 2010 document “has the appearance of being Sharron’s signature”, Mr Smith was not asked any question in cross-examination that challenged his evidence.

Consideration

The issue in this case is one of fact. Did the deceased execute the 2010 document on 10 February 2010 as her last will and testament?
Mr Meissner has the burden of proving that that question should be answered in the affirmative.
It will be convenient to start by making the following observations about the 2010 document, relevant to the likelihood that it was produced by the deceased and executed by her as her last will and testament:
(1)The document is a photocopy.
(2)No original of the document has ever been found.
(3)Mr Meissner’s evidence is that the deceased took the original document with her after she left Fairfax House on 10 February 2010 (together with the original of Mr Meissner’s will).
(4)However, notwithstanding that there was evidence that the deceased was a meticulous record keeper, the only will found in the place where the deceased told her brother, immediately before her death, was the 17 December 2008 will, and not the original of the 2010 document.
(5)There is no evidence that the deceased told anyone of the existence of the 2010 document.
(6)There is no evidence that anyone saw the 2010 document after 10 February 2010, until Mr Meissner gave a photocopy of the document to Mr Davis on 25 July 2014.
(7)Mr Smith gave evidence, which I accept, that the deceased asked him whether he was prepared to be the alternate executor in her 2008 will. I also accept his evidence that the deceased did not ask him whether he was prepared to be the executor, as nominated in the 2010 document. It is improbable that the deceased would have nominated Mr Smith as her primary executor, without having first asked for his consent.
(8)Although the deceased was a wealthy woman, and had instructed Ms Lindsay to prepare her 2008 will, there is no evidence that she instructed a solicitor to prepare the 2010 document, and Mr Meissner’s evidence suggests that the deceased prepared the 2010 document herself. That is inherently improbable, given the worth of the assets that would become part of the deceased’s estate, and the importance to the deceased of ensuring that her will was validly executed. Although the deceased was apparently an astute businesswoman, there is no evidence that she was familiar with any of the rules concerning the formal and essential validity of wills; and in particular, the steps that were necessary for a will to be properly executed and witnessed.
(9)Clause 3(d) contains a description of Mr Meissner as the deceased’s “partner and husband”. The deceased plainly knew that she had divorced Mr Meissner on 5 August 2008. Furthermore, although there is scope for doubt about the number of times and regularity that Mr Meissner and the deceased were in contact after they separated, if she saw him regularly at all, the evidence is not consistent with Mr Meissner being the deceased’s partner as at 10 February 2012.
(10)The address of the deceased is misspelt. She lived in the apartment at 202/40 Refinery Drive, Pyrmont, and not 40 Refinery Drive; it is an improbable slip for a long-term apartment owner to describe her address without referring to the number of the apartment, particularly in a document as solemn as a will.
(11)The document misdescribes the address of the executor, the deceased’s brother, as being at Yowi Bay, rather than Yowie Bay.
(12)Mr Meissner took no steps to instruct his solicitors to file a caveat in the Probate Registry to protect the 2010 document after the deceased passed away.
(13)Probate of the 2008 will was granted on 31 October 2013. Mr Meissner did not provide a copy of the 2010 document to his solicitor, Mr Davis, until 25 July 2014. Mr Meissner provided no explanation at all for why he did not give Mr Davis his copy of the 2010 document at the time he first instructed Mr Davis, and instead falsely contradicted Mr Davis’ evidence.
(14)I infer that Mr Davis wrote the letters that he wrote to Ms Lindsay’s solicitors in 2013, in which he claimed that Mr Meissner had a right to make an application for a family provision order against the deceased’s estate on the basis of instructions given by Mr Meissner, and in ignorance of Mr Meissner’s claim that he was the sole residuary beneficiary of the deceased’s estate under a later, valid will than that for which probate was granted to Ms Lindsay. It is entirely improbable that Mr Meissner would have given Mr Davis instructions to write the letters that he did, if the 2010 document existed, and Mr Meissner believed that it was the deceased’s last will. Mr Meissner offered no submissions to explain how the steps that Mr Meissner instructed his solicitor to take in the period up to 25 July 2014, when the 2010 document was given to Mr Davis, were objectively consistent with Mr Meissner being aware from the date of the deceased’s death that he was the residuary beneficiary, under a valid will made by the deceased on 10 February 2010.
(15)I accept Ms Lindsay’s evidence that, at the meeting she had with Mr Meissner at her office shortly after the deceased’s funeral, he asked her whether he was a beneficiary under the deceased’s will, which I infer from the statement in her September 2013 file note: “Joe was surprised he was not mentioned in the Will”.
(16)The divorce between Mr Meissner and the deceased took effect from 6 September 2008, which was about three months before the deceased executed her 2008 will. The residuary beneficiaries of the 2008 will are the deceased’s six nieces and nephews and her brother and sister in equal shares. While it is true that over a course of years testators may simply and spontaneously change their minds as to the beneficiaries who they wish to inherit their estates, it may be observed that in the present case, there is no evidence of any objective circumstances that would explain a decision by the deceased to revoke her will and make a new will bequeathing the whole of her residuary estate to her divorced husband.
(17)To the contrary, there is evidence given by Ms Lindsay, which I accept, that the deceased made a number of statements to her to the effect that she wished to sever all ties with Mr Meissner, and to leave her estate to her family.
(18)Mr Meissner suggested a reason for the deceased’s change of mind, in par 6 of his 26 April 2015 affidavit. He said that the deceased said to him that she wanted to make sure that Ms Shi did not get anything out of the estate of Mr Meissner or the deceased, and that he and the deceased would each give the other most of their estates. While an agreement that there be mutual wills is capable of explaining a change of mind on the deceased’s part, it is not a compelling explanation, given the absence of objective evidence of the wealth of Mr Meissner, which he was offering in exchange for the deceased’s agreement to leave her residuary estate to him. Furthermore, there appears to be no compelling reason why the deceased would have wanted to disinherit her family in favour of a former husband with whom she had no more than occasional dealings, if that, given in particular the substance of her own wealth.
(19)I accept Mr Kierath’s evidence that he attended a meeting with the deceased at her office in Crows Nest at about 12 noon on 10 February 2010, and that the meeting lasted for approximately 1 to 1 ½ hours. I view that fact as being completely inconsistent with the possibility that the deceased was at Fairfield House at Windsor at the time claimed by Mr Meissner, Mr Middleton and Mr Quayle.
(20)On the other hand, I note that a comparison between the specific requests in the two wills appears to provide some support for Mr Meissner’s case. Both wills make specific gifts in favour of St Vincent’s Hospital and the Cancer Research Foundation, as well as the deceased’s parents. The gifts to the parents and St Vincent’s Hospital are the same in each case; being $200,000 and $100,000 respectively. The gifts to the Cancer Research Foundation are $100,000 in the 2008 will and $100,000 in the 2010 document (the error in the 2008 will in describing the gift as being $100,000 in words, and $150,000 in figures having been corrected). If the deceased did not prepare the 2010 document, then the terms of the specific bequests might be thought to give rise to a significant coincidence; given that Ms Lindsay’s evidence suggests that the deceased and Mr Meissner had little contact, so it should have been unlikely that the deceased would have had an opportunity to inform Mr Meissner of the terms of the specific bequests in her 2008 will. There is, however, a simple explanation for this apparent coincidence. That is that Mr Meissner’s solicitor was given a copy of the 2008 will on 4 October 2013. That was before Mr Davis said that he was told my Meissner of the existence of the 2010 document in the last week of October 2013. Mr Meissner therefore had the benefit of knowing the terms of the 2008 will before he asserted the existence of the 2010 document as being the last will of the deceased, and delivered a photocopy of the document to Mr Davis on 25 July 2014. Mr Meissner therefore had the opportunity to use the 2008 will as a template for the 2010 document.
In my view all of these factors, when considered in combination, make it highly, if not overwhelmingly, improbable that that deceased executed the 2010 document as her last will on 10 February 2010. I find that Mr Meissner has not proved his case in relation to the declaration that he seeks in par 1 of his summons.

Conclusion

I therefore make the following orders:
(1)Order that the plaintiff’s claims in pars 1 to 4 of the summons be dismissed.
(2)Order the plaintiff to pay the defendant’s costs of the proceedings in relation to the claims referred to in order 1.
(3)Direct the parties to deliver to the court and serve on each other any submissions they wish to make as to the basis of the costs order made in order 2 within 14 days.
(4)Direct the parties to deliver to the court and serve on each other a statement in writing of their position in relation to the further relief claimed by the plaintiff in the summons and by the defendant in the cross claim, and as to the directions that should be made for the further conduct of the proceedings in relation to that relief within 14 days.
(5)Direct that the exhibits and any documents produced on subpoena or notice to produce may be returned forthwith.
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[2016] NSWSC 790

20 June 2016