JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April, 22 April, 23 April, 26 April, 4 May, 9 June 2021
DATE OF JUDGMENT:	18 March 2022
CASE MAY BE CITED AS:	Re Cassar
MEDIUM NEUTRAL CITATION:	[2022] VSC 126

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WILLS & ESTATES – Validity of will – Alleged forgery of will – Standard of proof – Defendant partner of deceased claims she forged the will – Will gave all assets to one son, no provision for defendant partner of 30 years or three other children – Circumstances give rise to real suspicion that testator did not know and approve the contents of the will – Inofficious will – Handwriting expert evidence – Testator did not know and approve content of will – Will is forgery produced after testator’s death – Grant of probate revoked – McKinnon v Voigt [1998] 3 VR 543 – Veall v Veall (2015) 46 VR 123 – Briginshaw v Briginshaw (1938) 60 CLR 336.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D W Laidlaw CSC	Stenta Legal
For the Defendant	Mr J Rizzi	Watson Hughes Lawyers

TABLE OF CONTENTS

A.. Introduction.................................................................................................................................. 1

B.. Legal principles............................................................................................................................ 5

McKinnon v Voigt........................................................................................................................... 8
Standard of proof........................................................................................................................ 14

C.. The facts....................................................................................................................................... 16

D.. Contested lay evidence about the alleged forging of the will:......................................... 31

Sandra........................................................................................................................................... 32
Teresa............................................................................................................................................ 37
Michael Senior............................................................................................................................. 39
Michael......................................................................................................................................... 40
Raymond...................................................................................................................................... 42

E... Did Frank know and approve the contents of the will?..................................................... 43

Consideration.............................................................................................................................. 47

F... Was the will forged?.................................................................................................................. 51

Assessing the evidence – relevant principles.......................................................................... 51
Expert handwriting evidence.................................................................................................... 53
Mr Ganas............................................................................................................................. 55
Mr Neil Holland................................................................................................................. 57
Assessment of expert handwriting evidence................................................................. 61

Consideration.............................................................................................................................. 63
The apparent logic of events and known facts.............................................................. 63
Sandra.................................................................................................................................. 70
Teresa.................................................................................................................................. 72
Michael Senior.................................................................................................................... 74
Raymond............................................................................................................................. 79
Michael................................................................................................................................ 79
Analysis............................................................................................................................... 80

G.. Disposition.................................................................................................................................. 83

HIS HONOUR:

A. Introduction

This proceeding concerns the validity of a will dated 29 September 2009 purportedly made by Francis Michael Cassar (Frank) who died on 14 October 2011, aged 60, following a sudden heart attack.[1] Frank was a businessman of some notoriety who, over a period of about 40 years, expanded his commercial interests from a panel beating business into the operation of tow trucks and substantial property holdings. When he died, those interests were concentrated in an area of about half an acre in Fitzroy, nearly all of which he owned directly or indirectly through a company which he controlled.
[1]Without any disrespect to the parties, in the interests of clarity, I will refer to the parties and their family members by their first names. Although the validity of the will purportedly made by Frank and dated 29 September 2009 is in issue, for convenience, I will refer to this document…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Cassar

Details

AGLC: Re Cassar [2022] VSC 126
Case: [2022] VSC 126
Decision Date: 18 March 2022

CaseChat Overview and Summary

In the matter of Re Cassar, the deceased, Mr. Cassar, passed away leaving a will that was contested by his long-term partner and three of his children. The deceased's will left all his assets to his son, Joseph, while omitting any provision for the partner, and the other three children. The partner, the defendant in the case, alleged that the will was forged and that she had no knowledge of or approval for its content. The dispute was brought before the court to determine the validity of the will and whether it should be admitted to probate.

The court was tasked with resolving whether the will was valid and whether it reflected the true intentions of the deceased. The key legal issue was whether the deceased knew and approved the contents of the will, considering the substantial omission of the partner and the other children. The court also needed to determine the standard of proof required in such cases, given that the partner alleged forgery and the will's omission of her and other children raised a real suspicion.

The court held that the standard of proof required in cases of alleged will forgery is a balance of probabilities, as established in Briginshaw v Briginshaw. The court found that the circumstances of the case, including the substantial omission of the partner and three children from the will, gave rise to a real suspicion that the deceased did not know and approve the will's content. Handwriting expert evidence further supported the partner's claim that the will was not authored by the deceased. Consequently, the court concluded that the will was a forgery and revoked the grant of probate. This decision was influenced by McKinnon v Voigt and Veall v Veall, which set precedents for similar cases.

The final order of the court was to revoke the grant of probate for the contested will, effectively rendering it invalid. This decision ensures that the deceased's assets are distributed according to intestacy laws, providing a fair outcome for all beneficiaries, including the partner and the other children.

Orders