Mortimer v David; Estate Dawn Audrey Day, deceased

[2005] NSWSC 1166

CITATION:	Mortimer v David; Estate Dawn Audrey Day deceased [2005] NSWSC 1166
HEARING DATE(S):	28, 29, 30 September 2005
JUDGMENT DATE :	17 November 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Letters of administration c.t.a. revoked. Letters of administration on intestacy granted to plaintiffs as next of kin.

CATCHWORDS:	PROBATE - letters of administration - application to revoke grant of letters of administration with a copy of will claimed to be lost annexed - claim last will of testatrix revoked not lost - whether will last traced to deceased - presumption of revocation - allegation that deceased had destroyed will - whether sufficient evidence to determine on the balance of probabilities that the deceased had revoked will - PROBATE - practice and procedure - grant of administration c.t.a. made in proceedings where next of kin, who had obtained earlier grant of administration on intestacy, joined as defendants and served but did not appear - whether grant in solemn form or common form - whether next of kin as defendants bound by result - proceedings in absence of party - power to set aside grant
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s17(3)(c)
CASES CITED:	Calder v Public Trustee [2003] NSWCA 187 Re Barraclough deceased [1967] P 1 Re Izett [1982] 2 NZLR 425 Welch v Phillips [1836] 1 Moo PC 299
PARTIES:	Richard John Mortimer and Andrew Peter Mortimer (Plaintiffs) Ivor David (Defendant)
FILE NUMBER(S):	SC 121467 of 2004
COUNSEL:	Ms R Whitfield (Plaintiffs) Mr J B Whittle SC (Defendant)
SOLICITORS:	Haydon Fowler Corbett Jessop (Plaintiffs) Abrahams & Associates (Defendant)

LOWER COURT JURISDICTION:

20

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

WINDEYER J

THURSDAY 17 NOVEMBER 2005.

121467/04 RICHARD JOHN MORTIMER & ANDREW PETER MORTIMER V IVOR DAVID IN THE ESTATE OF THE LATE DAWN AUDREY DAY

JUDGMENT

Issue

1 Should a grant of letters of administration with a copy of a will annexed be revoked and a grant of letters of administration on intestacy made in circumstances when an earlier grant of administration on intestacy was revoked upon the making of the grant now challenged.

Facts

2 This is an extraordinary case. Dawn Audrey Day-Miles (the deceased) died on 27 July 2001. She was divorced. Her next of kin entitled in the event of her dying intestate are two sons, Richard John Mortimer (Richard) and Andrew Peter Mortimer (Andrew) the plaintiffs in this action. The reason why I refer to them by their first names is that in various proceedings to which I will refer, they are sometimes plaintiffs and sometimes defendants.

3 The deceased made a will dated 2 December 1997 which appointed the Public Trustee as executor and gave the whole of her estate to the Beit Yosef Synagogue at Bondi Junction. It is accepted that there was an error in the description and the proper name is the Bet Yosef Synagogue. The will was prepared by Mr Peter Rusbourne from Messrs Watkins Tapsell, solicitors. The synagogue is also known as the Caro Synagogue. Its premises are at Bondi Junction. The deceased spoke to Mr Rusbourne’s secretary on 13 November 1997, who noted “Dawn Day-Miles rang again … she wants to change her will – wants to leave everything to Charlie Joseph’s synagogue (he runs the Geniza Bookshop at Bondi and apparently will ring us if the bequest is acceptable and the name of synagogue, etc)”.

4 On 4 December 1997, Mr Rusbourne sent a copy of the will to Mr Charlie Joseph. On 29 May 1998 the deceased directed Mr Rusbourne to send the original will to the synagogue. He did so by letter of 10 June 1998. Mr Meyer the honorary treasurer of the synagogue endorsed on a copy of the letter a receipt for the will and sent this back to Watkins Tapsell.

5 Mr Meyer had been warned by Mr Joseph that this was to happen. Mr Meyer was in the habit of picking up the mail for the synagogue from a post office box and that is how he got the will. He took it home and filed it in a blue ring binder folder with other documents and papers relating to Bet Yosef. The documents were not punched and placed on the rings in the binder, but just put into it. He could not remember removing the will from the folder. Mr Meyer resigned as treasurer in May 1999 and was succeeded in that role by Mr Ian Aaron. Mr Meyer placed the contents of the blue folder in a manila folder and handed this to Mr Aaron. He could not remember whether the will was among the documents. He had not given it to anyone else. He does not have it now. Mr Aaron said that Mr Meyer gave him the folder at the synagogue. He took it home and put it in his study. He did not check the documents in it and in fact he did not look at the folder again until contacted by Mr Mortimer in October 2001. The original will was not in the folder. There is no evidence to suggest that any member of the synagogue has seen it since Mr Meyer put it into the blue folder. Nor is there any evidence to suggest that any member of the synagogue gave it to anyone else. There is evidence, however, that persons other than Mr Meyer, when he was in charge of the blue folder, and Mr Aaron when he was treasurer, had access to the rooms where the relevant folders were kept. It was never in a secure place.

6 The deceased, for about 15 years prior to her death, had become very interested in Judaism. She conducted her life as faithful Jews would conduct their lives, keeping the Sabbath, eating only kosher food, reading religious books relating to the Jewish faith which she purchased from Charlie Joseph’s bookshop. She told Andrew that she thought it possible for her to be recognized as a Jew, despite having a Scottish mother and she said she thought making substantial donations to the synagogue might help in this. She sold and bought houses from time to time and contributed ten percent of the sale price to the synagogue. These gifts, however, were it seems, made to the Central Synagogue in Sydney, not to the Caro Synagogue at Bondi, which received no such gifts. The deceased told her sons that if she kept giving for long enough she would be made an honorary Jew.

7 The evidence establishes there are no known honorary Jews. There is a detailed procedure for admission to the Jewish faith through the auspices of the Jewish ecclesiastical court. The local synagogue has no part to play in that procedure. The evidence establishes that the deceased had taken no steps through the court to bring about her admission or recognition as a Jew.
8 Each of Andrew and Richard said that about six weeks before she died, the deceased had telephoned him to say that she was about to be recognised as a Jew and that there was to be a big ceremony at the Bondi Synagogue in a few weeks’ time for this, that the Rabbis and other important Jewish people would be present and that there would be a big lunch or dinner. The deceased by this time was living on the South Coast at Kianga and arrangements were made for her to drive up and call at her son Andrew’s place at Sylvania Waters on the way to the synagogue. Andrew said that his mother was dressed up and excited. Andrew’s then wife was there and said much the same thing.

9 Andrew said that about two and a half hours after his mother left his home at Sylvania Waters to drive to the ceremony she returned and appeared disturbed. The following paragraphs, leaving out some passages rejected on objection, are paragraph 9 to 14 of an affidavit of Andrew sworn 13 December 2004.
9. About two and a half hours later my mother returned. I answered the door and my mother appeared to be very distressed.

Andrew: "What happened?"
My mother: "I went over to the Synagogue and none of the Rabbis turned up. There were no prominent Jews there; it was a load of crap."
Andrew: "What about the ceremony and the big slap up meal?"
My mother: "There was only a couple of plates of sandwiches and biscuits and nothing else."
Andrew: "No wonder you're pissed off after all the trouble you went through."

…

My mother handed me a yellow envelope and said "Take a look for yourself”. I opened the envelope and saw a document which appeared to be the original of the Will, a copy of which is the subject of these proceedings.
Andrew: "Mum calm down, it will be ok Let me get your bag out of the car and I will put it in Christie's room and you can sleep there tonight."


10. My mother and I then went out to her car. I saw her put the envelope containing her Will back into the glove box of her car. We then went inside.

11. About three hours later my brother Richard arrived. My mother and I went to the front door and there was a conversation to the following effect:

Richard: "Hi Andy. Hi Mum what's up?"
Andrew: "The bastards have upset Mum this time."
Richard “Mum what have they done?
My mother: "They didn't give me the ceremony. I went there and all I got was some sandwiches and tea, the important Rabbis weren't even there and there wasn't any ceremony either."
Richard: "Weren't they supposed to give you a big ceremony with the Rabbis and welcome you to the Church as an honorary Jew?"
My mother: "Yes that was supposed to happen but it didn't. I am really upset about it."

12. The three of us then went into the kitchen and there was another conversation to the following effect:

Richard: "What happened, you were so excited about the ceremony and everything."
My mother: "I don't know. I was supposed to go to the Synagogue and be made a Jew by the Rabbis through a big ceremony. Then there was going to be a big kosher meal but when I got there, there was only one Rabbi and a few other people who gave me a cup of tea and some sandwiches. There was no big ceremony or anything and there was no mention of me being made a Jew."
Richard: “What did you do Mum?”

…

After that the three of us went out to Mum's car where it was parked. She retrieved the envelope out of the glove box and passed it to Richard and said:

… They are not getting anything back after what they just did to me."

I saw Richard read the papers and then he returned it to my mother who put it back into the glove box of her car.

13. A couple of weeks later I received a telephone call from my mother and had a telephone conversation with her to the following effect:

My mother : “I want to come up and see you and your brother to give you some personal papers to hold in case something happens to me."

14. My mother came to my place at Sylvania Waters a couple of weeks later. At that time I was cooking on the bar-be-que. I had a conversation to the following effect:

My mother: "I brought those papers with me; I want you to keep them in a safe place."
Andrew: "OK. I'll do it after I finish cooking."
My mother: "OK. I'll go and play with the kids for a while."
About twenty minutes later my mother came to me and said"
"Don't worry, I put them under Christie's mattress, they will be fine there."
10 This is supported by Richard’s affidavit of 10 December 2004, paragraphs 6 and 7 of which are as follows, parts of paragraph 6 being admitted but not as to the truth of what was said:
6. A short time later I drove to my brother's then residence at Peninsula Road, Sylvania. I went to the front door and knocked. My mother and my brother came to the door together. Whilst we were standing at the front door my mother said:

My mother
"The rotten bastards, I was supposed to go in for a big ceremony and it did not happen.”
Richard : "Why? What's the problem?"
My mother : "There was only a couple of people there and all they had was sandwiches
Richard : "Wasn't it supposed to be a really big meal? "
My mother : "Yes, it was but all we got was sandwiches. "
Richard : "Well that's a bit crook. "
My mother : I am really pissed off about it. "
Richard : "Well let's go inside and have a cup of coffee. "


We proceeded to walk into the kitchen.

7. Whilst we were drinking coffee in the kitchen my mother said:

My mother: "Come with me I've got something I want to show you in the car. "
My brother and myself then accompanied my mother to the front of his house and down to the street where her car was parked in the driveway. I observed my mother open the car and reach into the glove box and draw out an envelope from the glove box, then came to where my brother and I were standing adjacent to the car and she opened the envelope in our presence. She said:
My mother: "This is the Will and I want you both to have a look at it. "
She then handed it to me and I read it. I recall that it was a two page document on light blue coloured paper. I then handed it back to my mother and I saw her put it back in the envelope. She then put it back into the glove box.

11 The deceased died suddenly and it seems unexpectedly shortly after this. Her sons arranged her funeral at Narooma. While there they said that they searched the house and found no will. The deceased had said earlier that she had left some documents at Andrew’s house but none were found. On that occasion she had said: “I think I am going to leave my will to the Waliga Lake Aborigine Community”.

12 Andrew said he went to the synagogue to make inquiries and he spoke to a Rabbi there. Paragraph 19 of his affidavit give his account of this as follows:
Andrew "My name is Andy Mortimer. I am the son of Dawn Day. My mum passed away a few days ago and I thought her Will might be here in your custody".

He then asked an assistant to see if the Will was still in their possession. A short while later the second person returned and said to me "The Will is not here. "


Andrew "Are you sure?"

Other Person "Yes. If it was here it would be where I looked."
Andrew " Thanks, see you later."

13 In cross-examination Andrew said that as he did not know until the hearing there was more than one synagogue. He did not think that he mentioned Bet Yosef to the Rabbi he met. He could not remember whether the assistant he referred to was male or female. He did not remember being given the name of somebody to ring. He said that he went to the synagogue as he thought that his mother might have sent the will back as he could not rely on her doing what she said she would do.

14 Rabbi Reich gave evidence. I find that he was the person to whom Andrew spoke at the synagogue shortly after the deceased’s death. He is Rabbi of the Adas Israel Synagogue in the same building as the Bet Yosef Synagogue. He remembered the visit by Andrew; he denied making any search for any document; he had no assistant; he referred Andrew to Mr Aaron. He did this because Andrew mentioned the Bet Yosef Synagogue. I accept this evidence and insofar as it is contradictory to that of Andrew I prefer it. It is supported by the telephone call to Mr Aaron.

15 In oral evidence in cross-examination Andrew said that he had taken the deceased to the synagogue on about ten occasions over two to five years. He had dropped her there or at the bookshop; he had seen her go up the stairs at the side of the synagogue but had not seen her go in. He would have dropped the deceased at the synagogue or at the bookshop at around 11.00 am or 12 noon.

16 Mr David is president of the Bet Yosef Synagogue and has been so since the end of 1997. He did not hear of the will until after the death of the deceased. He did not see it. The synagogue had no place to keep such documents. A member of the committee such as the president, secretary or treasurer would keep any important documents at his home.

17 This is not a synagogue in a big separate building. The synagogue occupies the ground floor of a building at 243 Old South Head Road , Bondi. At the time in question another synagogue, the Adas Israel Synagogue occupied the next level. On the upper level was the ladies’ gallery of the Adas Israel Synagogue and a flat where the Rabbi of the Adas Israel Synagogue lived and still lives. At the relevant time the Bet Yosef Synagogue had no Rabbi. Mr David had not heard of any ceremony for the deceased. The transcript is a little unclear as to whether he knew of Charlie Joseph. He did not know the deceased.

18 Mr Meyer was told about the will by Mr Joseph. It is clear that Mr Joseph was excited about this. Thus he, Mr Meyer, was not surprised when he collected it from the post office box. Mr Joseph had told him of the deceased’s interest in Judaism and her purchase of religious books from him. He never met her. Neither did Mr Aaron. Mr Aaron said that he knew all members of the synagogue and the deceased was not one of them. The evidence establishes that the synagogue was not open between the time when morning prayers concluded and evening prayers commenced. Services were led by members, not a Rabbi. The synagogue would not have been open at the times the deceased was dropped there by Andrew. The Sydney Beth Din is a Jewish ecclesiastical court which presides over or maintains records of conversions to Judaism. A local synagogue has no authority or power in this matter. There are no persons recognised as honorary Jews. The deceased is not recorded as a person proceeding to conversion.

19 The result of all of this is either the deceased’s statements as to what was to happen on the relevant day were a fantasy or that she was misled by someone – not an official of the synagogue – as to what would happen. She did not attend the synagogue and as it was not open on the occasions she was dropped there, presumably allegedly to attend some service or prayer meeting, it is likely that most of time was spent at Mr Joseph’s bookshop. Certainly on the evidence of Mr Meyer, the will seems to have been made at the suggestion of Mr Joseph. Mr Joseph died, but after the death of the deceased. The date of his death is not established and it was not argued that the defendant synagogue has been disadvantaged in a manner so as to bear upon a discretion to revoke the order made in the absence of Richard and Andrew.

Events after death

20 Andrew and Richard consulted Mr Halligan of Messrs. Roach and Halligan, solicitors, about their mother’s estate. According to both of them his instructions were to see if she had left a will. Mr Halligan wrote to Messrs Watkins Tapsell on 15 October 2001 in the following terms:
15 October 2001


Messrs Watkins Tapsell
Solicitors
DX 4512 SUTHERLAND

ATTENTION: DAVID FRANCIS

Dear Sirs,

Re: ESTATE OF MRS DAWN DAY-MILES
We have been consulted by children of the abovenamed who recently passed away. In order to advise our clients as to any possible entitlement, would you kindly provide us with a copy of the will forwarded by you to the Caro Synagogue.
Yours faithfully,
ROACH & HALLIGAN

21 Watkins Tapsell asked for proof of death. On 1 November 2001, Mr Halligan forwarded copy of the death certificate of the deceased and asked for a copy of the will to be faxed to him. This was sent on 2 November 2001. There was other correspondence between the Public Trustee and Messrs Watkins Tapsell concerning the original will and confirming that it had been sent to the Caro Synagogue on 10 June 1998.

22 Some time in 2002 Richard and Andrew changed solicitors from Mr Halligan to Mr Scully of Macree Scully Solicitors of Bankstown. Mr Scully was known to Andrew. At the time the change took place, Richard and Andrew were both aware that the original will could not be found. They also knew that the will had been made. It seems that Mr Scully was instructed to apply for a grant of letters of administration on the basis the deceased died intestate. Mr Scully knew of the 1997 will. Andrew had gone to the synagogue to ask for it. The affidavit in support of the grant was sworn on 19 December 2002. It disclosed nothing of the 1997 will according to Richard on the basis that the deceased had said that she had destroyed the papers in the glove box. If that were so then the affidavit was quite misleading. It made no mention of the inquiries for a particular will but general information about searches and inquiries for a will at the bank by advertisements in the Law Society Journal and by inquiries of solicitors in the area where the deceased lived. Mr Scully may have made these inquiries. On any basis the affidavit was misleading.

23 Letters of administration were granted on 27 December 2002. The only property of the deceased disclosed was her home at Kianga, estimated to be worth $150,000.

24 By statement of claim in new proceedings 121579 of 2003 (the first revocation proceedings) between Mr David, as plaintiff, as representative for the synagogue and Richard and Andrew as defendants, application was made for revocation of the grant of letters of administration and for a grant of letters of administration with a copy of the 1997 will annexed to be made to Mr David. An amended statement of claim was filed on 19 April 2004 in a more appropriate form for a grant to a syndic. The statement of claim alleged that the will 2 December 1997 remained unrevoked at the death of the deceased, but that the original will could not be found. The Public Trustee had by then renounced probate of that will. The original statement of claim was served on Richard and Andrew. The amended statement of claim was probably not served but nothing really turns on this. There was no appearance. After a number of false starts, and on the basis that the will was last traced to the synagogue but could not be found, I made orders on 10 May 2004 revoking the grant of letters of administration on intestacy and for a grant of letters of administration with a copy of the lost will annexed to be made to Mr David as syndic for the synagogue until the original will was proved. Orders were made for the earlier grant to be deposited in the registry and for accounts to be filed and passed by Richard and Andrew. Those orders were served. The new grant was issued on 10 May 2004.

25 The orders as to deposit of the original grant with the court and for accounts were not obeyed. A notice of motion for punishment for contempt was filed. At that stage Mr Scully appeared, filed in court appearances by Richard and Andrew, and in essence took responsibility and produced accounts showing the Kianga property was sold with net proceeds of sale of $158,414.37 which after deduction of costs was distributed between Richard and Andrew.

Estoppel Defence

26 In response to a defence of estoppel in the present action, being the second revocation proceedings, the plaintiffs here, Andrew and Richard, gave affidavit evidence to the effect that when served with the first revocation statement of claim, they put the matter in the hands of Mr Scully; that they had sent the documents to him; that they had a number of meetings with him at which he made notes of their version of events; that they attended a conference with a barrister but were unhappy with his views and asked Mr Scully to brief a different barrister. They said that Mr Scully arranged for them to attend to see a new barrister on 24 October and asked them to meet him in the coffee shop below the relevant chambers. They said that Mr Scully came to the coffee shop and said “I’ve got bad news. The synagogue has successfully overturned the letters of administration”. They went to see the new barrister who said that as Mr Scully had been to see him for advice for having failed to act they should seek alternative representation. They said that until that day they did not know that the matter had been to court.

27 Mr Scully did not give evidence but this evidence of Andrew and Richard was not really challenged and I accept it. It was clearly relevant to the application to set aside the order made in their absence pursuant to Pt36 r16(2)(b) of the Uniform Civil Procedure Rules 2005 . It is fair to say that it was not really made clear whether the second revocation claim was put on the basis of setting aside an order made in the absence of the defendants in those proceedings or whether the application was made on the basis that a grant in favour of the synagogue was not a grant in solemn form but rather an interlocutory order not available to support a defence of estoppel by judgment. Both were argued and only arose through an amended defence filed at the commencement of the hearing although notified some time before.

28 Some time was spent in argument as to whether the grant of letters of administration with a copy of the will annexed was a grant in common form or in solemn form. While this was interesting I do not think it is necessary to spend time on it. As the grant was limited until the original will be proved it was certainly not a final order in one sense. It might be though that a solemn form grant cannot be made in a case where the original will is not proved: after all the original will might be found later with the word “revoked” written across it. However, this thought is not correct. This is best explained in the second edition of Mortimer on Probate at pages 533 and 593 with the statement of claim precedent 16 on page 1036 being an action in solemn form where the executor propounds a lost will. The real difference between grants in solemn form and grants in common form is that the latter grants are usually applied for ex parte and on summons, no person other than the applicant for a grant being joined as a party; whereas solemn form actions are commenced by statement of claim and interested parties are either joined as defendants and served or are served with citations so as to bind them to the result. Persons properly joined as defendants and necessarily so joined, as were Richard and Andrew in the first revocation proceedings, are as a matter of law bound by the result unless and until the judgment is set aside. Service on them brought about this result and the fact the grant did not include the words “in solemn form” does not change this. But even if it did Richard and Andrew as parties to the first revocation hearing, were bound by the result. They could not, in my view, have argued thereafter that it was an interlocutory order on an issue which they were entitled to have relitigated. The right of any interested person in an estate to require a will proved in common form to be proved in solemn form cannot sensibly extend to parties to common form proceedings on pleadings if such proceedings are possible which I do not consider they are. Thus a defence based on estoppel would succeed unless the claim of the plaintiffs in their reply succeeds namely that the judgment should be set aside as it was obtained in their absence through the fault of their lawyer, not themselves, thus giving the court discretion to set aside the judgment so obtained if satisfied there was some defence on the merits. In probate actions it is the grant pursuant to judgment which must be revoked. That makes it appropriate and desirable to claim this by separate action. In special circumstances even a grant in solemn form made in the absence of a party or persons cited, can be set aside even though a judgment in rem. I consider there are proper grounds to allow the plaintiffs to bring this action: Re Barraclough deceased [1967] P 1 at 11; Re Izett [1982] 2 NZLR 425. I turn to the merits.

The Law

29 Although this is a suit for revocation of a grant the onus rests on the propounder of the will in question. In a case where the last will of a testatrix is last traced into her possession and is not found after her death, there is a presumption that the testatrix destroyed it intending to revoke it: Welch v Phillips [1836] 1 Moo PC 299. It is not necessary to go into the subtleties of this principle as none of them bear on this case.

30 The presumption can of course be rebutted. Here the will was not found after the date of death. Although senior counsel for the plaintiff, having successfully excluded certain evidence, put evidence of a statement of the deceased that she had destroyed the documents in the glove box back into evidence in cross-examination of Richard, it was not really argued that if the deceased obtained possession of her will and had it with her after returning from the unsuccessful gathering, the presumption did not remain in place.

31 The question then is whether I am satisfied on the balance of probabilities that the will was last traced to the hands of the deceased. This depends on whether the evidence of the plaintiffs should be accepted.

32 There are some significant matters which bear upon this, most or all of which were referred to by Mr Whittle:-


(a) the plaintiffs knew of the 1997 will and its contents at the time they applied for letters of administration and, I should add, before their mother had died. The affidavit in support of their application for a grant was sworn on 19 December 2002 and if not untrue, it was at least misleading in the way it was expressed in that it stated a belief that the deceased did not leave a will and giving evidence of searches made for a will, particularly as no inquiries were made of the Waliga Lake Aboriginal community the deceased said might benefit under a new will;

(b) the fact that they knew of the will on 15 October 2001 is shown by the letter Messrs Roach & Halligan sent to Messrs Watkins & Tapsell on that date. There is no suggestion in that letter that the will had been revoked;

(c) by this time Andrew had been to the synagogue and had spoken to Rabbi Reich and to Mr Aaron. He had not suggested to either of them that the will had been revoked. His explanation that he wanted to see if his mother had returned it without any apparent mention to them that she had collected it is difficult to accept. The statements attributed to the deceased that she collected the will from the synagogue office were not true. There was no office. She did not collect it from Mr David, Mr Meyer or Mr Aaron. On the other hand as none of the members of the synagogue who might have had custody of the will held it at the date of death it is possible by some means it got into the hands of Mr Joseph and from there into the hands of the deceased;

(d) a file note of Mr Scully dated 22 April 2004 which somehow got into evidence without objection, reads as follows:

FILE NOTE
MORTIMER
DATE: 22 APRIL 2004

Andy’s recollection about his Mother’s Will …

After she died Andy instructed Roach and Halligan to obtain a copy of the Will because his Mother had told him that she had collected it from the Synagogue.

Roach and Halligan wrote for a copy of the Will but none were produced so Andy went over to the Synagogue because he thought maybe his Mother in fact had not collected it even though she had told him she had done so.

He went and saw the Rabi. The Rabi that he saw didn't have any personal knowledge of his Mother and said that they did not have the Will. They searched while Andy was him [sic].

The circumstances of Mrs Mortimer's change of heart are set out in the details notes that Andy has provided to me in conference.

KJS

Attached to that document is what is apparently a statement of Andrew prepared for Mr Scully, which includes the following paragraph:

Mum then informed me that she had gone to the Bondi Mosque on the way home and collected her personal papers including her will and [sic] that she had given them for safe keeping and that she was going to leave her assets to a dogs home as they were more trustworthy.

There is no suggestion in the statement that Andrew saw the will at that time. It is put that the documents taken together are contrary to a claim that Andrew saw the will which the deceased had in the glove box in the car. On the other hand the statements go some way to rebut a charge of recent invention put by Mr Whittle to both plaintiffs that the whole story about a conversion ceremony and the deceased’s disappointment was made up to support a claim for revocation once they knew that the original will could not be found.


33 I should make it clear at this stage that I accept the evidence of the plaintiffs and Donna Mortimer that the deceased thought she was going to a ceremony which would admit her as an honorary Jew. As no one connected with the synagogue – other than Mr Joseph – seems to have known the deceased it is likely that she was deceived by Mr Joseph but as he is dead there is no way that this can be established as a fact.

34 To counter the attack on the plaintiffs’ credibility Mrs Winfield said that if the plaintiffs had intended to fabricate a story about the will and its destruction, they could have said that they saw their mother tear it up whereas what was said about its being in the glove box, being produced for inspection and returned to the glove box, was an extraordinary story to present if untrue. Mrs Winfield also relied on the evidence that the will was not put in a secure place and that persons other than Mr Meyer and Mr Aaron had access to the rooms where the documents were kept at various times. This could go both ways as it could go to explaining the loss.

35 This is a very strange case. It is perhaps explained by the fact that the deceased was living out some sort of fanciful expectation that she would be accepted as a Jew, this being fostered by Mr Joseph in an endeavour to get her money for his synagogue. This is a possibility but something which is no more than that. It is possible that after giving substantial sums of money to the Central Synagogue the deceased was putting pressure on Mr Joseph to achieve some result for her.

36 Andrew said that he told Mr Scully about the will in the glove box. It is possible he did, although the only version of the prior statement in evidence is that to which I have referred. He may have made other statements. I say that because the circumstances in which and stage at which the statement referred to got into evidence were such that I should not disbelieve Andrew on this. As I have said that evidence came towards the end of the plaintiffs’ case and could have been strengthened by evidence of Mr Scully but for obvious reasons he was not a volunteer and he was not subpoenaed. Mr Halligan could have been called by the plaintiffs to give evidence of their original instructions to him, particularly as his correspondence in evidence appeared to assume the existence of the will question. None of this was done and the case must of course be decided on the evidence put before the court. However, the letter written by Mr Halligan on 15 October 2001 does not destroy the credibility of the plaintiffs. They did not know for certain their mother had destroyed the will. It is quite unlikely they knew anything about the presumption of revocation.

37 I have grave reservations about some of the evidence of the plaintiffs. However, there was a will; it was held by a synagogue representative; the files in which it was kept were not kept secure; it is quite unlikely that anyone in an official position at the synagogue would have obtained access to the will for some purpose and lost it. As the deceased was in the habit of telling her family she was going up to the synagogue and from time to time having Andrew supposedly drop her there – which she was not - and as she was often dropped at the bookshop, and as I accept the evidence that she thought that she was going to Bondi for a special occasion about which she was disappointed, there is every reason to think that in her eyes she had been let down and thus a reason in view of her disappointment for her to take the only action she could to show her disapproval, namely to collect her will intending to revoke it. It was not improbable that she would tell her family that she collected the will from the synagogue office as they would have expected her to do this as they thought she attended services there and was going there for a special occasion.

38 I have considered carefully all the matters which throw doubt on the evidence of the plaintiffs. In all the fantasies in this strange case, their evidence is not fanciful; once the evidence about the disillusionment following the non-existent ceremony is accepted, then it is possible to accept the evidence about the will in the glove box. There is no evidence any member of the synagogue saw the will after 1997; the only evidence is that none of the persons who might have been responsible saw it or gave it to anyone. While there is some reason to doubt the evidence of the will being last in the hands of the deceased, I am not satisfied that it is not true. The onus is on the synagogue or its representatives to establish the will was lost in this case by the synagogue or one of its members. I find that it has not discharged the onus. I consider that on the balance of probabilities the deceased did obtain possession of the will and it was last seen in her possession by her sons. The presumption that she destroyed it has not been rebutted. I should add that even without the glove box evidence my acceptance of the evidence of the intended ceremony, the state of mind of the deceased when she returned and her statements as to collecting the will would have precluded a finding of loss by the synagogue and required an order for revocation.

39 It follows from this that there will be an order for revocation of the existing grant and fresh grant of administration on intestacy. I will hear argument on the question of costs.

Orders


1. Order that letters of administration with a copy of the will dated 2 December 1997 annexed granted on 10 May 2004, be revoked and that the original grant be deposited in the Registry.

2. Order that letters of administration of the estate of the deceased be granted to the plaintiffs as next of kin of the deceased.

3. Order that the administration bond be dispensed with and the papers be referred to the Registrar to complete the grant.

4. Costs reserved.
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