Re Cassar

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2012 00877

IN THE MATTER of the Estate of FRANCIS MICHAEL CASSAR, deceased

MICHAEL ANTHONY CASSAR	Plaintiff
v
SANDRA ANNE CASSAR	Defendant

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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 as ‘the will’.

Frank’s will purports to appoint his son Michael Anthony Cassar (Michael) as his executor and sole beneficiary. Probate of the will was granted to Michael on 3 February 2012. Michael’s evidence was that the administration of Frank’s estate is complete.

Frank’s domestic partner for more than 30 years was Sandra Anne Cassar (Sandra). She is also the mother of Michael and his three siblings Paul Francis Cassar (Paul), Francis Samuel Cassar (Francis) and Teresa Anne Cassar (Teresa).

The will makes no provision whatsoever for Sandra, or for Paul, Francis or Teresa.

In July 2019, more than seven years after probate on the will was granted, Sandra applied to the Court for an order that the grant be revoked on the basis that it is a forgery.

The will is in the form of what is generally known as a ‘will kit’. It extends over two pages and is simple in its terms. A copy of it is set out below:

An allegation that a will is a forgery is an allegation of the most serious sort. In this case, the bases upon which the claim is made can only be described as scandalous. Sandra’s sworn affidavit filed in support of her application for revocation is to the effect that she, together with Michael, was instrumental and participated in a conspiracy to create the alleged forged will. Essential to that enterprise was the procuring, after Frank’s death, of a signature on the will which was a reasonable facsimile of Frank’s true signature. Sandra and Frank’s daughter, Teresa, has sworn an affidavit in support of the application for revocation in which she deposes that she in fact signed Frank’s name on the will ‘a few weeks’ after his death. To complete this extraordinary set of allegations, one of the persons identified in the will as having witnessed Frank sign it – Michael Cassar (Michael Senior), one of Frank’s 14 siblings – also swore an affidavit in the proceeding in which he deposes to having signed the will purportedly as an attesting witness, but after Frank’s death. In making that affidavit, Michael Senior recanted from the contents of an affidavit sworn by him three weeks earlier in which he deposed that he had in fact witnessed Frank sign the will.

Michael denies that the will is a forgery. He relies upon evidence by the other purported attesting witness to the will, Raymond Cassar (Raymond), another of Frank’s brothers, that he witnessed Frank sign the will in his presence. He also relies on expert evidence from Mr Neil Holland, a document examiner, who gave evidence that the signature on the will was written by the writer of certain ‘Frank Cassar’ signatures with which he was provided. That opinion is contested by another document examiner, Mr John Ganas, who was called to give evidence by Sandra. He gave evidence that there is very strong support for the proposition that the signature appearing on the will is not genuine and is the result of a ‘simulation/forgery process’.

In addition to the allegation of forgery, Sandra also contends that the grant of probate should be revoked because Michael, as the person who propounds the will, cannot discharge the onus of proof which rests upon him to prove that Frank knew and approved its contents. She submits that the evidence as a whole discloses circumstances which must excite a suspicion in the Court that Frank did not know and approve of the contents of the will and that Michael has failed to dispel those suspicions.

Before setting out my findings of fact and addressing the bases upon which Sandra alleges that probate should be revoked, it is necessary to first consider the key legal principles which form the framework in which the issues raised in this proceeding fall to be determined.

B. Legal principles

In addition to proving testamentary capacity, the propounder of a will sought to be admitted to probate must prove that the testator knew and approved of its contents at the time of its execution.[2] Absent circumstances which excite suspicion that the provisions of a will may not have been fully known to and approved by the testator, the mere proof of the testator’s capacity and the fact of due execution create an assumption that the testator knew of and approved its contents.
[2]Veall v Veall (2015) 46 VR 123, [166] (‘Veall v Veall’). That Frank had testamentary capacity at the relevant time was not in issue.

The presumption of due execution does not, however, apply where there is an issue about whether a testator had, or had not, in fact, signed the will.[3] As stated by Isaacs J in Nock v Austin, ‘[w]here any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document’.[4] This principle extends:[5]

... to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.

[3]See for example Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064.

[4]Nock v Austin (1918) 25 CLR 519, 528.

[5]Tyrrell v Painton [1894] P 151, 157 (‘Tyrrell v Painton’). Endorsed by Tadgell JA (with whom Phillips JA agreed) in McKinnon v Voigt [1998] 3 VR 543, 555 (‘McKinnon v Voigt’) (referred to below).

In Robertson v Smith, Tadgell JA stated ‘where the principle applies it has the effect of casting an onus on the propounder to demonstrate, over and above proof of the formal validity of the will, what has been called “the righteousness of the transaction”’.[6] His Honour identified that the ‘essential feature of the principle, where it applies, is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testator executed it in the presence of witnesses after it had been read to or by him’.
[6]Robertson v Smith [1998] 4 VR 165, 173 (‘Robertson v Smith’).

However, a ‘mere assertion’ of a lack of knowledge and approval by a testator is insufficient to ground the existence of suspicious circumstances.[7] As Santamaria JA stated in Veall v Veall, ‘[t]he party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator’.[8]
[7]Veall v Veall (n 2) [171].
[8]Ibid, my emphasis. Citing the judgment of Tadgell JA in McKinnon v Voight (n 5) 551 referred to below.

Further, suspicious circumstances ‘are limited to those which somehow bear upon the question whether the testator knew and approved of the contents of the will; and circumstances not existing at the time of execution…would be unlikely to do that’.[9] The point was recently addressed by McMillan J in Re O’Callaghan where her Honour stated: [10]

Any inquiry relating to knowledge and approval concerns the circumstances surrounding the execution of the will. Evidence of what occurs after the death of the testator is not readily capable of throwing light on the question of the testator’s knowledge and approval of a will executed during the testator’s lifetime and is not relevant to raising a suspicion. In certain circumstances, such as where there is a delay in producing the will, such delay may support contemporaneous evidence raising a suspicion.

[9]Robertson v Smith (n 6) 173-174.

[10][2019] VSC 16, [26].

The possibility of delay in the production of a will as supporting contemporaneous evidence which raises the existence of suspicion circumstances arose in McKinnon v Voigt which I consider in detail below. In that case, the appellant, Ms McKinnon, obtained a grant of administration ad colligenda bona. Three months later, Mrs Voigt produced a handwritten will purportedly signed by the deceased, which made Mrs Voigt executor and sole beneficiary. Tadgell JA found that the delay in discovering the will was ‘very strange’, unexplained, and was one of a number of suspicious circumstances. The delay was of itself sufficient in the circumstances to ‘excite keen enquiry and careful scrutiny of the evidence’ that the will came into existence on the date it purported to be made.[11] Ormiston JA stated that, if the delay was not connected with some other suspicious circumstance relating to the execution of the will, the three month delay in producing the will would not alter the onus of proof. However, because the delay was ascribed to a person who took benefit under the will, delay could be considered a suspicious circumstance.[12]
[11]McKinnon v Voigt (n 5) 554.
[12]Ibid 565 (Ormiston JA).

In Veall v Veall, Santamaria JA addressed the issue of how, in circumstances where suspicious circumstances are alleged, the propounder of a will might dispel suspicions that a will does not express the will of the testator. His Honour stated that:[13]

What evidence will be sufficient to allay the Court’s suspicion will necessarily depend on the circumstances supporting the suspicion;[14] the proof required to allay “suspicious circumstances” will depend upon what it was about the circumstances that made them suspicious.

[13]Veall v Veall (n 2) [172].

[14]Tobin v Ezekiel (2012) 83 NSWLR 757, 771 (‘Tobin v Ezekiel’); Vukotic v Vukotic (2013) 12 ASTLR 238, [22]–[25]; Brown v Guss [2014] VSC 251, [370]–[373]; Wintle v Nye [1959] 1 WLR 284.

Santamaria JA referred with approval to the following statement by Meagher JA in Tobin v Ezekiel in relation to the proposition that the sufficiency of the evidence to allay the court’s suspicion will depend on the circumstances of the case:[15]

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will: Barry v Butlin …; Gregson v Taylor …; Re Fenwick … What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye … the relevant circumstances were described … as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew …; Tyrrell v Painton … That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton …; Nock v Austin …; Fuller v Strum …; Dore v Billinghurst …;

[15]Veall v Veall (n 2) [179], omitting citations.

Santamaria JA referred to the need for the propounder of a will to show that the testator knew and approved its contents when it was executed ‘so that it can be said that he comprehended the effect of what he was doing’; that is, that he knew the contents of the will ‘and appreciated the effect of what he was doing so that it can be said that it contains his real intention and reflects his true will’.[16] His Honour observed that, although:[17]

… Evidence that a will was prepared on the testator’s instructions and was read by or to him or her before it was executed has been described as “the most satisfactory evidence”. But, it is not conclusive evidence. In the end, the court must be satisfied that the testator knew and approved the contents of the will sought to be admitted to probate.[18]

McKinnon v Voigt[19]

[16]Ibid [215].

[17]Ibid [216].

[18]Ibid [215]-[216].

[19]McKinnon v Voigt (n 5).

As with this proceeding, the decision of the Court of Appeal in McKinnon v Voigt concerned an allegation of forgery as well as an allegation of a lack of knowledge and approval of a testamentary instrument. Given the analogous nature of the claims made in this proceeding, it was a particular focus of the parties’ submissions and raises important questions as to the correct approach to be adopted in the present matter.

The factual background to McKinnon v Voigt may be briefly stated. A grant of letters of administration had been made of a hand-written will. The will had been written by the son of the executor and sole beneficiary under the will, allegedly on the instructions of the deceased shortly before his death, when the deceased was gravely ill. The will was purportedly signed by the deceased, and witnessed by the executor’s son, who wrote the will, and his sister. The appellant, the deceased’s cousin, objected to the grant of letters of administration on the grounds that the will was forged by members of the executor’s family, and that the deceased did not know and approve its contents, either because they were not disclosed to him, or because he was unable to appreciate them. A lack of testamentary capacity and undue influence were also alleged.

The lead judgment of the Court of Appeal was delivered by Tadgell JA (with whom Phillips JA agreed). Consistent with the principles to which I have already referred, his Honour referred to the applicability of the following three established principles:[20]

(a)the onus of proof lies in every case upon the party propounding a will; and that party must satisfy the conscience of the court that the instrument propounded is the last will of a free and capable testator;
(b) where circumstances excite the suspicion of the court it is for those who propound the will to remove the suspicion and to prove affirmatively that the deceased knew and approved the contents of the document; and
(c) it is only when any such suspicion is removed that the onus is thrown on a person resisting a grant to the propounder to prove facts relied on to displace the prima facie case in favour of the propounder.

[20]Ibid 551, citations omitted.

Tadgell JA criticised the trial judge’s statement that, ‘[i]n the nature of things, where those opposing the will rely on an allegation of forgery, that two-stage approach is inappropriate’. His Honour continued: [21]

It is, with respect, difficult to see why the so-called two-stage approach is inappropriate where an allegation of forgery is made by an opponent of a grant to a propounder. If the evidence, taken as a whole, discloses circumstances which excite in the court a suspicion that the document propounded might be attended by forgery - as to the whole of it or as to a signature or some other part - I can see no possible basis for saying that the propounder does not bear the onus of dispelling the suspicion. I am, of course, speaking not of a mere assertion or allegation of forgery, but of a well-grounded suspicion engendered in the mind of the court acting judicially. …

[21]Ibid 551.

Tadgell JA considered that, on any view, the facts of the case established ‘a state of affairs that ought to have excited the court’s anxious suspicion that the document which the respondents sought to propound might not have represented the testator’s mind and will’.[22] He continued:[23]

In accordance with settled principle, an onus lay upon the respondents to dispel that suspicion as a pre-requisite to a grant to them of letters of administration. Until the respondents as propounders did so the appellant bore no onus to prove, by the standard referred to in Briginshaw v Briginshaw or at all, that the document propounded as the testator's last will, or any part of it, was forged.

[22]Ibid 552.

[23]Ibid 552.

After identifying five particular circumstances which gave rise to a well-founded suspicion that the will in question did not express the will of the testator, Tadgell JA referred to the need for ‘vigilant and jealous scrutiny’ in examining each of the circumstances which gave rise to the suspicion.[24] Those circumstances ‘demanded to be considered in combination rather than in isolation each from the other’.[25] His Honour referred in detail to the judgments of the Court of Appeal in Tyrrell v Painton[26] which he stated illustrated the point that: [27]

… where there is cast upon a propounded will a well-founded suspicion that it might not represent the mind and will of the person whose will it is represented to be, no grant will be made before the circumstances which raise the suspicion are explained so as to dispel it. The principle is the same whatever be the facts and circumstances which create the suspicion. It must be so whether the objection is, on the one hand, that the document, although executed by the deceased person, does not for some reason represent his mind and will or whether it is, on the other hand, that the document was not executed by the deceased at all.

[24]Ibid 554. Citing Wintle v Nye [1959] 1 WLR 284, 291-2.

[25]Ibid 557.

[26](n 5) 157 (Lindley LJ).

[27]McKinnon v Voigt (n 5) 556, emphasis added.

Accordingly, ‘the question whether the disputed will was proved by the appellant to be a forgery did not arise for the judge’s consideration unless and until the suspicious circumstances had been explained and the suspicions dispelled’.[28] Because the suspicious circumstances were overwhelming and unexplained, it was unnecessary to determine whether the forgery of the will had been proved. ‘[T]he undispelled suspicion that the will did not express the mind and will of the testatrix was sufficient to deter the court from pronouncing in favour of it’.[29]
[28]Ibid 557.
[29]Ibid 558.

The other member of the Court, Ormiston JA, doubted whether a two-stage approach is always appropriate in the case of allegation of forgery. He stated that if:[30]

… the grounds of objection include both denial of execution by the deceased and want of knowledge and approval of the contents of the alleged will, then, where there is evidence of circumstances which arouse suspicion, the fact that a party establishes affirmatively that a will has been executed by the deceased will make an inquiry as to forgery irrelevant. An allegation of forgery will, of course, require the caveator to assume the burden of bringing forward such evidence as directly relates to forgery, but that cannot deny the precepts in the cases cited by Tadgell J.A. requiring that the burden of establishing due execution and knowledge and approval remains upon the propounders to establish by clear and satisfactory proof that the will was so executed with the testator’s knowledge and approval of its contents. With this may be contrasted the practicality of a two-stage approach where an allegation is made of specifically pleaded undue influence or fraud. …
…
There is, of course, a difference between denying due execution and affirmatively alleging and proving forgery, for in the latter particularity is required, which may be difficult to establish to the appropriate standard against an individual named in the particulars, but, where relevant suspicion is aroused, the propounders must satisfy the conscience of the court, after a vigilant and anxious examination of the whole of the evidence, that the will was in fact executed by the deceased in circumstances where he or she knew and approved its contents. Whether or not the court finds in favour of or against actual execution, there will very rarely be any purpose in pursuing the allegation of forgery further. On the other hand where circumstances of suspicion are not aroused, prima facie proof of execution in the accepted way will ordinarily lead to the second stage of the inquiry, that is whether the caveator has established the alleged forgery whereby the prima facie finding will be displaced and a grant of representation denied.

[30]Ibid 561-562.

Counsel for Michael submitted that I was not bound to apply the ‘two-stage approach’ endorsed by Tadgell JA in McKinnon v Voigt because his Honour’s statements about it were obiter dicta and not part of the ratio decidendi of the decision. This was so because the propounders of the will in that case had failed to discharge their onus on the initial enquiry as to whether the testator had known and approved the contents of the will. Accordingly, on either view, it was unnecessary to the outcome of the case to consider the issue of forgery.

Counsel for Michael adopted the criticisms of the ‘two-stage approach’ expressed by Ormiston JA in his dissenting judgment referred to above. Counsel sought to distinguish between those cases where the suspicious circumstances involve generic allegations of undue influence or testamentary capacity, and those raising a specific allegation of forgery. In the former, the propounder of the will must first discharge the burden of establishing that the testator knew and approved of the will. If that is done, the burden transfers to the opponent to make out to the requisite standard the allegation that, despite the due execution of the will by a testator who knew and approved it, there were other circumstances that operated upon the mind or freedom of the testator.

In contrast, in the case of forgery, the first stage of enquiry will necessarily canvass the question of due execution. Accordingly, if there is no proof of due execution on the balance of probabilities, there will be no necessity to engage with the second stage concerning the forgery allegation per se. In relation to the enquiry as to whether the testator knew and approved the will, if the court determines that the will was executed by the testator then, by definition, there can have been no forgery. If, however, the propounder of the will has not proven due execution, the Court may wish to go on to make findings about forgery, although such an enquiry will be redundant as to the outcome.

The essential point advanced by Michael was that, where due execution of a will is in issue, there is but one test – to prove due execution and that the testator knew and approved the will and, in doing so, to clear away such suspicion as properly excites the concern of the Court. If Michael is successful in dispelling those suspicions, the forgery allegation will have been met and disposed of on the balance of probabilities. Any further additional analysis as to whether an allegation of forgery has been made out would be redundant and illogical.

In my view there is much to commend the approach adopted by Ormiston JA in McKinnon v Voigt where forgery is alleged and there is merit to Michael’s submissions developed by reference to his Honour’s observations and criticisms of the ‘two-stage approach’. However, as a trial judge, I consider that, unless it is properly distinguishable, I am bound to apply the approach endorsed by Tadgell JA because it forms part of the ratio decidendi of his Honour’s judgment with which Phillips JA agreed.

The ratio decidendi of a case ‘is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him …’.[31] Applying this principle, contrary to Michael’s submissions, it is not determinative that consideration of the issue of forgery was unnecessary to the outcome in McKinnon v Voigt. The extracts from Tadgell JA’s judgment referred to in [23]-[25] above make clear that, in endorsing and articulating the rationale for a ‘two-stage approach’, his Honour was expressly ruling on a point of law which was essential to the chain of reasoning he adopted and which led to his conclusion in that case.
[31]As expressed by Rupert Cross and J W Harris, Precedent in English Law (Oxford University Press, 4^th Ed, 2004) 72 and endorsed by Court of Appeal of NSW in Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95, [121] (Sackville AJA, McColl and Basten JJA agreeing). See also the discussion by Finkelstein J in Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524, 569–573 [148]–[160].

There is also no proper basis to distinguish the approach adopted in McKinnon v Voigt from the circumstances of this case. Both involve allegations of forgery as well as other suspicious circumstances.[32] A different approach might properly be adopted where the only suspicious circumstance is an allegation of forgery, but that is not this case and it is unnecessary for me further consider that possibility in light of my conclusions as to the existence of suspicious circumstances.
[32]In McKinnon v Voigt a lack of testamentary capacity and undue influence were alleged.

It is also relevant that the approach articulated by Tadgell JA in McKinnon v Voigt was followed by the Court of Appeal of NSW in Tobin v Ezekiel,[33] which in turn was referred to with approval by the Court of Appeal in Veall v Veall.[34] In Tobin v Ezekiel, there was no allegation of forgery, but undue influence, a lack of testamentary capacity and an absence of knowledge and approval were alleged. Meagher JA (with whom Basten JA agreed) noted that ‘[c]ircumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator’s knowledge and approval of the contents of the will’.[35] His Honour stated that: [36]

… it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551, 557, 561–562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved:…

[33]Tobin v Ezekiel (n 14).

[34]Veall v Veall (n 2) [166], [168]–[169], [193]–[198] (Santamaria JA, Beach and Kyrou JJA agreeing).

[35]Tobin v Ezekiel (n 14) [51].

[36]Ibid.

Meagher JA concluded that: [37]

… the suspicious circumstances rule does not operate at large. It operates to displace presumptions of fact in favour of those propounding the will. … With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will. If they give rise to a doubt as to knowledge and approval, those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing. They do not have to go further and disprove any suspicion of undue influence or fraud. …
[37]Ibid [55].

Standard of proof

Section 140 of the Evidence Act sets out the standard of proof in civil proceedings. It states:

(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.

Section 140(2)(c) is generally understood as giving effect to the principles expressed by Dixon J in Briginshaw v Briginshaw.[38] After rejecting the proposition that the common law recognised a third standard of persuasion beyond proof on the balance of probabilities and proof beyond reasonable doubt, Dixon J stated that, except in a criminal case: [39]

…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

[38](1938) 60 CLR 336.

[39]Ibid 362.

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[40] Mason CJ, Brennan, Deane and Gaudron JJ noted that generalisations about the need for ‘clear’, ‘cogent’ or ‘strict’ proof of matters such as fraud or criminal conduct in civil proceedings were likely to be unhelpful, or even misleading, if they were understood as being directed to the standard of proof. Instead:[41]

… they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

[40](1992) 110 ALR 449.

[41]Ibid 450, omitting citations.

It was uncontroversial that these principles apply in considering, in the context of the second stage of enquiry, whether Sandra has proved that the will is a forgery. However, because ‘deciding whether a document is indeed a person’s last will is a serious matter’, they also apply in the first stage of enquiry.[42] In Veall v Veall, Santamaria JA (with whom the other members of the Court agreed) emphasised that considering whether a testator knew and approved the contents of the will is to be determined on the civil standard of proof on consideration of all the evidence and that:[43]

Calls for vigilance in certain suspicious circumstances do no more than reflect the fact that “deciding whether a document is indeed a person’s last will is a serious matter” and Dixon J’s observation in Briginshaw v Briginshaw that “reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved”.

[42]Tobin v Ezekiel (n 14) 772 [48] (Meagher JA).

[43]Veall v Veall (n 2) [180], omitting citations.

His Honour referred with approval to the statement by Meagher JA in Tobin v Ezekiel that the authorities establish that ‘the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters’.[44] Santamaria JA noted that, although evidence that a will was ‘prepared on the testator’s instructions and was read by or to him or her before it was executed has been described as “the most satisfactory evidence”, … it is not conclusive evidence’.[45]
[44]Ibid [216], citing Tobin v Ezekiel (n 14) 772 [48].
[45]Veall v Veall (n 2) [216].

C. The facts

Frank was born in Malta, one of 15 children, and came to Australia when he was three or four years old. After school, he became a qualified panel beater.

Frank and Sandra commenced their relationship in 1973 when Sandra was 17 years old. Michael, their first child, was born in 1975. Paul followed in 1979, Francis in 1983 and Teresa in 1989. Frank and Sandra’s relationship continued until Frank’s death on 14 October 2011.

In the late 1970s, Frank established a panel beating business from adjacent premises at 62 Kerr St and 385-393 Fitzroy St, Fitzroy (the panel shop). Sometime afterwards, he started a tow truck business.

Over about the next 30 years, Frank amassed an extensive holding of real property. In addition to a substantial family home in Kew, this included seven properties in Fitzroy, including the properties where the panel shop was located.[46] Many of these properties were residential properties which he leased to tenants for rent.
[46]This figure includes the property at 55-57 Argyle Street, Fitzroy as one property, and also the property at 371 Fitzroy Street, Fitzroy (371 Fitzroy St) held by the Cassar Family Trust.

Another unusual feature of this case is that all seven of these properties were in the same small precinct in Fitzroy where the panel shop was located. When he died, Frank controlled seven of the eight separate properties located in a rectangular area of about 2,000m² partially bounded by Kerr, Fitzroy and Argyle Streets in Fitzroy. Frank, or a company of which he was sole director and shareholder,[47] was the sole proprietor of six of these properties. The registered owner of the seventh property at 371 Fitzroy Street was Raymond, as trustee of the Cassar Family Trust (the Trust). The Trust identified Frank and Sandra as specified beneficiaries.
[47]Grandview Housing Developments Pty Ltd (Grandview).

Since the completion of the administration of Frank’s estate in about 2018 and consistent with the terms of the will, the effective ownership and control of all of the above properties in Fitzroy has passed to Michael.[48] In December 2019, he purchased the one remaining property in the rectangular area to which I have referred which Frank had not owned or controlled.[49] Michael’s evidence is that the now complete rectangular area of 2000m² has a current value of about $15 million.[50]
[48]In relation to the property at 371 Fitzroy Street held by Raymond as trustee for the Trust, Raymond retired as trustee on 13 September 2012 and Michael was appointed in his stead. 371 Fitzroy Street was transferred to Michael in his capacity as trustee.
[49]373 Fitzroy Street, Fitzroy.
[50]He also gave evidence that he and Grandview have a total amount of debt in respect of these property holdings of approximately $7 million. This figure does not include Michael’s mortgage on 373 Fitzroy Street.

From about the mid-1990s until his death in 2011, Frank’s business interests were entangled in ongoing and wide-ranging legal and commercial disputation. The evidence suggests that at least some of the business difficulties which Frank encountered reflected commercial pressures created by the fact that, to some significant extent, his property purchases were funded by debt provided by second and third tier lenders who imposed substantially higher interest rates than first tier lenders such as banks. But Frank’s difficulties were not confined to the need to pay higher rates of interest. The controversies which pervaded his business interests included the suspension of his tow truck licences and related prosecutions, numerous planning disputes and prosecutions by the local council relating to cars from the panel shop being parked on the street, and prosecutions for breaches of residential tenancy laws. As to the latter, an article published in The Age on 9 March 2014 records that Frank had been given the sobriquet ‘Australia’s worst landlord’ ‘after racking up at least 9 convictions, 45 civil judgments and more than $50,000 in fines as the operator of a dozen inner city rental properties’.

Frank was closely involved in and controlled the day to day operations of his various business interests. The other members of his family also worked in the businesses at various times, in particular in the panel beating business and in maintaining and repairing the rental properties. Sandra worked in the office at the panel shop from about the late 1970s. When they were younger, the children would come to the office after school. While she was in high school, during the school holidays, Teresa cleaned the common areas of the rental properties and she worked in the office at the panel shop after she left school. Paul and Francis also worked in the panel shop over the years, including in the period leading up to Frank’s death.

After he finished school in 1993, Michael worked in the panel shop from 1994 until the late 1990s and completed a panel beating apprenticeship. He later ‘came and went’ from the business and then worked in the construction industry.

In the early 2000s, Frank and Michael clashed over Michael’s involvement in the panel beating business. Michael wanted to be more involved in the business than his father was willing to agree and Frank was, by all accounts, a difficult man to get along with.

By 2005 or 2006, Michael and Frank had had a number of disputes about money and were no longer on speaking terms. The duration and nature of this estrangement is disputed and is a matter about which it is necessary to make findings.

Michael’s evidence was that he was estranged from and not speaking with Frank for about a couple of years which he thought may have been in the period 2005-2007. Sandra’s evidence was that, after 2005-2006, she and Frank did not speak to Michael again until a birthday party in 2011 at the Caroline Springs Hotel for Michael’s mother-in-law. In re-examination, Michael gave evidence that, in this period, his relationship with Frank was:

… on and off. There was times there that we spoke and didn’t speak but, yeah, I was estranged there for a fair period of time. I couldn’t tell you exactly if it was two years, five years, I’d be – I’d be guessing …

This evidence highlights the uncertainty and vagueness of Michael’s recollection about the period of his estrangement from Frank. However, the decisive factor in preferring Sandra’s evidence on this issue over Michael’s is Michael’s acceptance that it was at the party for his mother-in-law when he and Frank ‘started taking again’. It was agreed that Michael’s mother-in-law’s fiftieth birthday was in May 2011. In preferring Sandra’s evidence on this issue, I was also struck by the credibility of Sandra’s recounting of the specific and otherwise unremarkable circumstances in which, a couple of weeks after the above birthday party, Michael ‘started coming around again’ to the panel shop. The evidence supports a finding that Michael and Frank were estranged from about 2005 or 2006 until about mid-2011, over which time they had no, or very little, contact.

The will was purportedly made in this period of estrangement on 29 September 2009. Raymond is the only witness who gave direct evidence about the circumstances in which it was made. Michael’s evidence was that he knew nothing about its making; he did not give evidence that he was present when it was made. I later consider Raymond’s evidence in some detail. For present purposes, it is sufficient to note that he deposed as follows in an affidavit filed in the proceeding and dated 31 July 2019:

3.On 29 September 2009, at the panel beating shop once owned by Frank at 64 Kerr Street Fitzroy, I watched my late brother Frank sign his Last Will & Testament (Will) before me and my other brother Michael Cassar (Mick Senior).
4.Today, Luke Faba of Stenta Legal, who is the solicitor for my nephew, Michael Anthony Cassar (who is the Plaintiff in this proceeding), has produced to me a copy of a document entitled Last Will & Testament and marked it “RC-1”. I recognise this document to be a copy of the original Will.
5.I recall formally witnessing the original signature of Frank on the Will along with Mick Senior. Under the section of the document marked “RC-1” which is headed “Attestation and Witness”, I recognise my signature above the signature which I recognise as Mick Senior’s signature. I recall seeing Mick Senior formally witness the original signature of Frank on the Will on 29 September 2009.

The financial and legal difficulties in which Frank and his business interests were embroiled deteriorated further in 2010 when the Australian Taxation Office (ATO) commenced action against him and Grandview. The ATO was seeking payment of approximately $2.4 million from Frank personally.

In addition to his legal and business difficulties, by 2011 Frank was in poor health. He suffered from diabetes and one of his toes had been amputated. In early-mid August 2011, he underwent eye surgery, after which time he was temporarily blind and wore an eye patch.

Teresa’s unchallenged evidence, which I accept, was that, after this surgery (but not before), she sometimes signed cheques and other documents in Frank’s name with his permission. She gave the example of the delivery of parts to the panel shop. Teresa would tell Frank what the cheques were for and he would say ‘sign it’. She would then sign a cheque in his signature and give it to the supplier for payment. She also signed Frank’s signature on letters he wanted to send, for example, to mortgagees.

In early September 2011, Frank suffered a heart attack while pushing a car into the panel shop. He was hospitalised for about six weeks, but failed to recover. He died on 14 October 2011 and his funeral was held on 21 October 2011.

Most of the events of present relevance which are said to have occurred in the period between Frank’s death and the end of November 2011 directly concern the alleged forging of the will and are sharply contested. The evidence of the lay witnesses in relation to those matters is summarised in [112]-[164] below.

Between November 2011 and July 2012, Michael and, more briefly Sandra, had a number of dealings with Debra Davis, a lawyer with Davis Lawyers in relation to Frank’s estate. Debra Davis and Peter Davis, also of Davis Lawyers, gave evidence in relation to their dealings with Michael and Sandra. Various parts of the legal file created by Davis Lawyers in relation to the legal services provided at that time were tendered in evidence. In making the various findings below, I have been particularly assisted by the evidence given by Debra and Peter Davis. Their evidence was dispassionate, directed at assisting the Court in determining the factual controversies in this proceeding and was supported by various file notes made from their dealings with Sandra and Michael.

Peter Davis had previously met Frank and had had some limited involvement with him in relation to, amongst other things, a prosecution brought by a local council. In late October or very early November 2011, Sandra and Michael visited the offices of Davis Lawyers and spoke briefly with him about Frank’s death and his estate. They made a time to meet Debra Davis who, unlike Peter Davis, practised in the area of wills and estates. Mr Davis’ brief handwritten notes from this meeting include the words ‘9 Dec Will’. In his evidence, Mr Davis had no recollection of making this note.

After the above meeting, on about 2 or 3 November 2011, Debra Davis created a file in relation to the estate of Frank Cassar which identified Michael as the executor of Frank’s estate. It is likely that Peter Davis told her that Michael was the executor. She had not then been provided with any will said to have been made by Frank; neither had Peter Davis during his earlier brief meeting with Michael and Sandra.

On 8 November 2011, Sandra met with Debra Davis for about 1½ hours. Ms Davis gave evidence that in this meeting she took initial instructions for a probate file, and that the estate was ‘very complex’ because it contained many properties owned by Frank personally, or by companies that he controlled, most of which held debt. Ms Davis had become acquainted with Frank because one of her firm’s clients had made loans, worth at least $2 million, to him or companies he controlled, secured over properties. She confirmed that the client in question offered ‘private’ mortgages at second tier lending rates, which were higher than normal bank rates.

In the meeting, Ms Davis asked Sandra if Frank had a will. Sandra said that she had not yet found it and that she was still looking for it. Ms Davis asked her: ‘But he definitely had a will?’, to which Sandra replied, ‘Yes. It was done about two years ago’. Ms Davis asked Sandra if she knew what was in it. Although Sandra’s evidence was that she said that she did not know because the will had not yet been found, Ms Davis’ evidence and the content of her file note of the meeting confirms that Sandra told her that she thought that the will provided for Michael to be the executor of Frank’s estate and that ‘all 4 [sic] children’ were the equal beneficiaries of the estate.

During the meeting, Sandra told Ms Davis that she had two outstanding debts totalling $50,000 and that Caprice Body Works Pty Ltd, of which she and Francis were directors, had an existing tax debt and a new tax debt of $150,000.

Following the meeting on 8 November 2011, Ms Davis considered that an application for probate needed to be prepared urgently because she had become aware that, with Frank’s death, various mortgagees were concerned about repayment of their loans.

The will was provided to Ms Davis’ office on 1 or 2 December 2011. Ms Davis perused it on 2 December 2011.

On 8 December 2011, Ms Davis had a conference with Sandra, followed by a conference with Michael. Ms Davis’ handwritten notes of both these conferences were in evidence.

In her conference with Sandra, Ms Davis asked Sandra to identify the witnesses to the will in order to prepare an application for probate. Sandra identified them as Raymond and Michael Senior. Ms Davis asked Sandra if she was present when the will was executed; Sandra said she was. Ms Davis asked Sandra why Frank did not include her in the will. Sandra said that it was ‘because of the tax debt’.

In her conference with Sandra, Ms Davis noted that the will left the whole of Frank’s estate to Michael. She asked Sandra about her other three children. Sandra identified them, referring to Paul as having a drug addiction and trouble with the police; Francis as being a gambler; and Teresa as not having any sense with money.

Sandra told Ms Davis that Michael would take Frank’s estate and then ‘split it up’; it is not clear whether she identified between whom the estate would be split. Ms Davis was concerned for Sandra and told her that Michael was under no legal obligation to make arrangements for the family, only a moral one. She told Sandra that people could make claims against an estate under Part IV of the Administration and Probate Act 1958 for six months after the grant of probate. Ms Davis told Sandra that she was not acting for her, that Michael was her client and recommended that she engage another lawyer. Ms Davis told Sandra that she and the other children all had Part IV claims against the estate.

After asking Sandra about what she thought would happen in the longer term, Ms Davis asked Sandra where the will was executed. Sandra told her that it was executed at the workshop in the presence of Frank’s two brothers.

At some point in the conference, Ms Davis told Sandra that, because Sandra was not the executor of Frank’s estate, she had to have a conference with Michael because he was the client.

In her conference with Michael on 8 December 2011, Ms Davis asked him if he was present when the will was executed; he said that he was not. In the course of the conference, Ms Davis told Michael that Sandra had not been properly provided for as a dependent of Frank, and that the possibility that a Part IV claim might be brought against the estate was a potential ‘issue’. Ms Davis gave Michael some general advice in relation to his siblings and Sandra who could bring Part IV claims. She said that he could take the estate and put it into ‘five settlements’: ‘his in his own hand … and four trusts’. She also suggested that Michael could gift Sandra some assets instead of her bringing a Part IV claim.

Michael told Ms Davis about his general plans for the estate. He wanted to sell the family home in Kew, renovate ‘Barkly Street’, pay out ‘the mortgage’ and set up a trust for Sandra. Michael also indicated that he wanted to give Sandra about $450,000 for her ‘super fund’ and a managed pension after age 60.

Ms Davis lodged an application for a grant of probate in respect of the will in late January 2012. As has been noted, that grant was made on 3 February 2012. The Inventory of Assets and Liabilities disclosed real estate in Victoria valued at $9,750,000,[51] personal estate valued at $4,815,040 and total liabilities of $7,594,451.99.[52]
[51]It listed properties located at: 58 Kerr Street, Fitzroy; 62 Kerr Street, Fitzroy; 55-57 Argyle Street, Fitzroy; 176 Barkley Street, Fitzroy; and 371 Fitzroy St.
[52]Which included mortgages over each of the real properties listed in the Inventory.

In 2013, Frank and Sandra’s family home in Kew was sold for $4.2 million. The proceeds of sale were used to discharge the mortgage on the property and to pay other debts of the estate.

After the family home was sold, Sandra moved to 365 Fitzroy Street (owned by Grandview) where she lived until she moved into 371 Fitzroy Street in about January 2017.

In 2015, Michael settled the claims brought by the ATO regarding Grandview’s liabilities. Sometime thereafter, Michael settled the claims brought by the ATO against Frank’s estate. Michael evidence was that he was ordered to pay ‘the first lot of company tax’ of approximately $1.28 million, plus legal costs and that he negotiated an agreement with the ATO regarding the personal tax liability and that the amount paid is confidential.

On 5 February 2015, Sandra met with Buller McLeod Lawyers to understand the options available to her to contest the will. She sought this advice because she was upset that Michael had not started the distribution of the estate to the other family members. Sandra’s evidence was that she did not inform Buller McLeod that the will was a forgery.

According to Sandra, she was told by Buller McLeod that she ‘didn’t have a claim’ in challenging the will, but that they would investigate the position regarding Frank’s companies. Buller McLeod then lodged caveats over two properties held by Grandview. Sandra’s evidence was that this was done without her authority. As a result, she ceased their engagement.

On about 3 July 2015, Sandra gave Michael a letter which read as follows:

Michael
I want discuss with you the potential to finalise the saga that has engulfed our family for the past 4 years. No doubt that this has affected everyone from yourself and the other 3 children and obviously me. I don’t want to continue the fighting and bitterness that consumes us, I just want some clarity and closure as I am sure the rest of us do, that is why I am writing to you to try to communicate unemotionally. Michael I want to help you resolve this and this is the best way I can see that the outcome can be achieved.
The family estate is valued at $16 Million. The liability, Land & Francis Jnr tax, is approximately $10 Million. The ATO stated that Francis Senior’s tax debt was $2.5 Million originally when he passed away, now it is at a value of $4 Million due to the elongated process of rectification that has taken 4 years now.
Please give me a time & a date to collect my belongings (Jewellery, photo’s, and Francis Senior’s model cars along with the remaining items that were in the crystal cabinets in the billiard room), as well as access into 64 Kerr Street to get my furniture.
Michael if you want the caveats removed from the Grand View properties, I want a letter written by your solicitor stating that when Francis Senior’s tax debt is settled with the ATO that the remaining assets are to be divided up evenly across the family.
Sandra Cassar.

Soon after he received this letter, Michael gave Sandra a handwritten note entitled ‘Outstanding Bills’. It listed various amounts which Michael considered to be the outstanding expenses arising from the administration of the Frank’s estate. Michael wrote, ‘This all gets paid before you get anything’ and concluded, ‘Please remove caveats or you will be out on the street from your dog shit attitude’. Michael’s evidence was that he wrote this in frustration and admits it could have been ‘better worded’. He stated that he ‘never had any intentions of making [Sandra] homeless or not giving her anything’. He explained that he had worked very hard to improve the estate, had missed much of his own children’s growing up, and was frustrated that three adults were living in a property and making no financial contribution while he was paying the mortgage.

Sandra sought legal advice from Arnold Thomas & Becker in about August 2015. After initial discussions, the firm indicated that it was willing to represent her in contesting the will. However, Sandra decided not to proceed with the retainer because she was ‘trying to keep everybody out of trouble and [she] wanted to see if [she] could negotiate with Michael’. Sandra’s evidence was that she did not inform Arnold Thomas & Becker that the will was a forgery.

In late 2015, the Registrar of Titles made orders providing for the removal of the caveats which Sandra had lodged on certain properties of the estate. The orders were made pursuant to s 89A Transfer of Land Act 1958 (Vic) on the basis that Sandra had not brought a proceeding to prove the asserted interest in the properties referred to in the caveats.

On 13 January 2017, Grandview entered into a tenancy agreement with Sandra and Paul in relation to the property at 371 Fitzroy St. Teresa also lived at the property. Although the agreement provides for a rental of $2167.00 per month, no rent was ever paid.

Sandra’s uncontested evidence was that, sometime in 2017, she asked Michael if he was ever going to distribute the estate property. She said to him that there were nine properties; if he gave one to her and one to each of his siblings, he could have the remaining five ‘for everything you’ve done’, and she and his siblings would ‘take ours and walk away’. According to Sandra, Michael became ‘upset’. They didn’t speak again for a long time.

In March 2018, Michael and Sandra had an altercation in the laneway behind 371 Fitzroy Street, where Sandra was living at the time. The altercation occurred in the context of Michael’s attendance at an adjoining property to supervise some plumbing repairs. They had a heated argument. Sandra alleges, and Michael denies, that Michael went to strike her with a wrench and that she pushed him away. It is unnecessary to determine the truth of that allegation.

It is the case, however, that Teresa’s boyfriend, Lee Howse, was present for at least some of the argument between Michael and Sandra and that he and Michael became directly embroiled in the dispute. As Michael put it, Mr Howse ‘stuck his nose in our family business and was calling me all sorts of names about the way I spoke to me [sic] Mum’. Mr Howse reported the incident with Michael to the police, alleging that he had been assaulted by Michael. Five charges were later laid against Michael in relation to Mr Howse’s complaint, all of which were later dismissed.

In June 2019, Michael instructed his real estate agent to serve a notice to vacate on Sandra, Paul and Teresa in relation to their tenancy of 371 Fitzroy Street. He did so because ‘they agreed to pay rent and never did so’. He gave evidence that he needed all available rent to cover the mortgage payments on the properties and his siblings and Sandra never made a financial contribution to meet those obligations even though, in the case of his siblings, they had been in employment. A notice to vacate was served on 14 June 2019.

On 8 July 2019, Sandra commenced a proceeding in the Victorian Civil and Administrative Appeals Tribunal to set aside the notice to vacate.

Sandra filed her application for revocation of the grant of probate in respect of the will on 23 July 2019. The summons for revocation was returnable before the Court on 2 August 2019.

The summons was supported by affidavits sworn on 3 July 2019 by each of Sandra and Teresa. In her affidavit filed in support of the summons for revocation, Sandra deposed to the circumstances and actions in which she was involved (considered in detail later in these reasons), allegedly at Michael’s instigation, which resulted in the creation of the will in the weeks after Frank’s death. The matters to which she deposed included the purchase by her of a ‘will-kit’, the writing by her of the details in the will and watching Teresa trace Frank’s signature onto the last page of the will. She also deposed to the circumstances in which Raymond and Michael Senior were said to have applied their signatures as purported witnesses to the will, but after Frank’s death.

In Teresa’s affidavit, she deposed to how, a few weeks after Frank’s death, she had been requested by Sandra and then Michael to sign Frank’s signature onto a will which Sandra had purchased from a newsagency and filled out. She further deposed to eventually agreeing to these requests and how she traced her father’s signature onto the will give to her by Sandra.

Michael gave evidence that he was ‘very shocked’ and ‘very disappointed’ in reading the contents of Sandra and Teresa’s affidavits. In late July 2019, he asked Raymond and Michael Senior to sign affidavits regarding the making of the will.

Raymond signed an affidavit on 31 July 2019, the contents of which are set out in [55] above. He deposed that, together with Michael Senior, he watched Frank sign the will at the panel shop on 29 September 2009.

Raymond’s evidence about the circumstances in which he came to make this affidavit was as follows:

I hadn’t spoken to Michael Junior for many years. [Michael] got in contact with me via a friend. I was handed a note with his phone number, and I promptly ripped the phone number up, I wasn’t interested. He came knocking on my door and asked me if I could go to his solicitor to sign an affidavit about the will.

Raymond’s response to Michael’s approach was:
Because you’ve come I’ll go and do it.

Michael told Raymond that there was an ‘issue’ or ‘disagreement’ about Frank’s will and that Raymond had to come see his lawyer to ‘verify that that’s him and his signature’. Raymond did not ‘enquire into exactly what was going on’ because it ‘wasn’t my business what Frank had put in his will’.

Raymond could not recall how long he spent at the office of Michael’s solicitor, Luke Faba, of Stenta Legal. His evidence was that an affidavit had already been prepared for him when he arrived there. He had not given any instructions for its preparation, and did not tell Mr Faba what to put in it.

In his evidence in chief at trial, Raymond stated that, before he swore his affidavit, he read it and came to the conclusion that its contents were true and correct. However, in cross-examination, he accepted that he did not consider, or think carefully about, its contents. He agreed that it was ‘put in front of you, you were asked to sign and you signed it’. Although he may have read the affidavit before signing it, he did not believe that he had done so. When shown the affidavit and having identified his signature, he said that he had no recollection of reading it.

Raymond also stated in his evidence that he could not recall whether an oath or affirmation was administered to him before he signed his affidavit. In re-examination, Raymond denied that he would sign an affidavit ‘willy nilly’; he had ‘come to understand what an affidavit is’. It may be noted that, although his affidavit records that it was sworn at Melbourne, Raymond gave evidence at trial on affirmation.

Michael Senior purported to make an affidavit on 31 July 2009 in relation to the making of the will which relevantly included the following paragraphs:

3.A few days before 29 September 2009, I spoke to Frank who said words to the effect of “I need to organise a Will can you be a witness”. I told him yes and he arranged to have me and my brother Raymond attend his place of work on 29 September 2009.
4.On 29 September 2009, at the panel beating shop once owned by Frank at 64 Kerr Street Fitzroy (Panel Shop), I watched my late brother Frank sign his Last Will & Testament (Will) before me and my other brother Raymond Cassar (Raymond).
5.I recall being in office of the Panel Shop with Frank, Raymond and Sandra (Frank’s wife).
6.Today, Luke Faba from Stenta Legal, who is the solicitor for my nephew, Michael Anthony Cassar (who is the Plaintiff in this proceeding), has produced to me a copy of a document entitled Last Will & Testament and marked it “MC-1”. I recognise this document to be a copy of the original Will.
7.I recall formally witnessing the original signature of Frank on the Will along with Raymond. Under the section of the document marked “MC-1” which is headed “Attestation and Witness”, I recognise my signature below the signature which I recognise as Raymond’s signature. I recall seeing Raymond formally witness the original signature of Frank on the Will on 29 September 2009.

The circumstances in which Michael Senior came to make this affidavit are as follows. Michael came to his house in July 2019 and said he wanted Michael Senior to come with him to see a solicitor. I accept Michael Senior’s evidence that Michael told him that he had been to court and that the judge wanted to gaol Sandra over the will because she had said that the will was false. Michael’s evidence on this point was vague; he ultimately accepted that it was possible that he did say this to Michael Senior. Michael then told Michael Senior to tell the solicitor that the will had been signed and was ‘alright’. Michael Senior agreed. Michael Senior asked what was going to happen to the property; Michael said ‘I'm going to sell everything and split it', and that Francis could have the tow truck.

A few days later, Michael collected Michael Senior in his car to see Mr Faba to make a ‘statement’. Michael Senior thought Mr Faba was the ‘family’ solicitor. His evidence was that it took 10 to 15 minutes for him to make the statement. Mr Faba asked him questions and Mr Faba typed a document as Michael Senior sat there. Michael Senior’s evidence was that, after the document was printed out, he signed it, but did not read it before doing so. Michael then drove him home.

Michael Senior’s evidence was that the document which is his affidavit dated 31 July 2019 filed in this proceeding was his ‘statement’ that was written by Mr Faba which he signed. However, his evidence was that it was not a sworn statement – he was certain that he did not swear on a Bible when it was made.[53] He was aware, however, that it would be used in a court proceeding.
[53]It may be noted that Stenta Legal was the firm of solicitors retained by Michael at trial. Mr Faba was the instructing solicitor at the first two days of trial, after which time another solicitor from Stenta Legal was the instructing solicitor. Mr Faba did not give evidence at trial.

A few days after Michael Senior signed his affidavit, his nephew Francis rang and asked what was going on. Francis told Michael Senior that Michael had taken Sandra to VCAT and had tried to evict her from the house she was living in. Francis said he would tell Sandra to arrange for her solicitor to send Michael Senior a letter.

Michael Senior subsequently received a letter from Sandra’s solicitor, Nicholas Hughes. Michael Senior then contacted Mr Hughes and they spoke. As Michael Senior expressed it in his evidence, Mr Hughes:

… told me what was going on. I said ‘well I didn’t know’. I had no idea what was going on. I said ‘[Michael] told me he was going to sell everything and, uh, share it, right?’ He says ‘no, he wants everything to himself’.

Michael Senior told Mr Hughes that he signed the will at his home after Sandra brought it to him and that he was the last person to sign it.

Michael Senior then swore an affidavit on 20 August 2019 in which he recanted from the contents of his first affidavit dated 31 July 2019. In relation to that affidavit he deposed that:

The contents of my affidavit are wrong in that I never witnessed my brother signing the document marked “MC-1” on the 29^th September 2009 or at any time. I signed the document marked “MC-1” at my home a month or so after my brother Francis Michael Cassar had passed away. My brother Raymond Cassar was not present at the time.

In June 2020, Michael visited Michael Senior at his home and asked him to withdraw his affidavit dated 20 August 2019. Michael Senior refused.

I will return to an assessment of the evidence given by Raymond and Michael Senior later in these reasons.

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

In this section I summarise the evidence given by each lay witness which bears directly upon the allegation that the will was forged or, in the case of Raymond, its making. The evidence generally relates to the period of about three or four weeks after Frank died on 14 October 2011.

Sandra
The need for a will

Sandra spent much of her time with Frank in hospital in the six weeks he was in intensive care after suffering a heart attack. Michael also regularly visited Frank. While Frank was in the hospital, Sandra did not speak with anyone about the will.

After Frank died, Sandra stated in her evidence in chief that:

… Michael kept asking if we had a will and I said I don’t recall your father ever making one. And, um, Michael said that, um, well you’d better organise something. I said well, I gotta look for and I looked everywhere in Kew. I couldn’t find anything and I thought it might have been back in the office and I went through the office stuff and I couldn’t find anything so I just said to Michael: ‘your father hasn’t got one’ and Michael said: ‘well, you’d better organise something cause they’re gonna take everything. Taxation department is already on your back and, um, you’re gonna lose everything and the mortgagees will take everything and there’ll be nothing’.

This evidence is a summary of a number of conversations which, according to Sandra, she had with Michael about whether Frank had a will. The first occurred at Sandra’s home after Frank’s death, but before his funeral in which, according to Sandra, Michael said that ‘the taxation department and the mortgagees are going to be knocking in the door so we have to organise something’. Sandra took this to mean, ‘to organise a will’.

Sandra’s evidence was that the other conversations she had with Michael about whether Frank had a will occurred after Frank’s funeral. During these conversations Michael pressed her about whether she had yet ‘organised’ a will and kept repeating that, without a will, ‘you’re gonna lose everything’ and ‘they’ll be nothing left’. Sandra told him that she would get a ‘make-your-own will’ from ‘the paper shop, the Herald shop’.

‘Filling in’ a will kit

Sandra gave evidence that she purchased a will kit from a newsagent in Smith Street in Collingwood a couple of days after speaking with Michael. She gave specific evidence about the location of the particular newsagency she attended, that she was assisted there by a shop assistant, the different types of will kits which were available for purchase, the cost of the kit she purchased and its appearance.
Sandra’s evidence was that, the following day when she was alone in the office at the panel shop, she opened the will kit and attempted to read its explanatory instructions. She then put it away when her children arrived. After they left, she read the instructions and ‘filled in’ the will. The instructions were on one sheet of paper, and the will was folded in the kit. She filled in the will herself by hand, was alone when she did so and did not discuss how she should do so with anyone. Her evidence was that she filled in most of the will, and ‘just needed a signature and … to get the witnesses’. Sandra’s evidence was that she ‘filled it all in on Michael’s pressuring all the time to get it done’.
In writing the will, Sandra’s evidence was that she identified Michael as executor of Frank’s estate and as the sole beneficiary of his residuary estate because, in her conversation with Michael about the will at her home in Kew, Michael had said to make him executor and beneficiary because he had a good credit rating and could obtain finance. In an affidavit filed in the proceeding, Sandra deposed that Michael told her that ‘after he got all the loans sorted out, he would transfer all the property to me and his brothers and sisters’.
Sandra thought Michael had a good credit rating because he owned his own home and a rental property. She thought Michael would be ‘the best one to put down [as executor] to save for the mortgages and the lease. To save the properties till we could sort something out’. Michael had the ‘credit rating to keep everything till we’d be able to get it solved…to keep the mortgagors [sic] off our doorstep’. He also said that he would organise matters with the ATO. Sandra did not think of identifying herself as executor or substitute executor in the will because she had creditors and tax debts.
Forging Frank’s signature
After she completed the will, Sandra’s evidence was that she kept the will with her at all times because she did not want the children to see it. After she had filled in the above parts of the will, Michael asked her if she would sign it. Sandra told him that she could not because of the rheumatoid arthritis she has suffered from for more than 20 years. Her condition is such that, although she can hold a pen and write, she cannot open bottles or jars.
Sandra’s evidence was that Michael suggested that she ask Teresa to sign the will. Sandra gave evidence that she asked Teresa the next morning and that Teresa initially said no, ‘because you can get in trouble’. Sandra agreed in cross examination that it was wrong and an ‘extreme thing’ to ask someone to forge a dead person’s signature on a will.
Sandra then told Michael that Teresa had said that she would not sign the will. Michael said that he would speak to her. Sandra gave evidence that Michael asked Teresa to sign the will when he was at the panel shop the following day. Teresa again said that she would not do so, to which Michael replied, ‘Well, when we lose everything it’s your fault’. Teresa said ‘Oh, okay then’.
Sandra gave evidence that the next day, Teresa told her that, after Sandra left the office the night before, Michael ‘was on her back to do the signature, so we wouldn’t lose everything’. Sandra’s evidence was that she said to Teresa that ‘it’s up to you if you want to sign it or not’. However, at some point which Sandra did not recall, Teresa agreed to sign the will at her request, but told Sandra that she was nervous or scared to do so.
When Sandra handed Teresa the will, she had clipped to it what Sandra referred to in her evidence as the ‘will pen’. She had previously been told that in completing legal documents, the same pen was required to be used. She had therefore attached a particular pen to be used by Teresa when she signed the will.
Sandra’s evidence about Teresa actually signing the will was as follows:
Well…because we had paperwork all over the office, things like that…she grabbed a piece of paper – I can’t even recall what it was, it was a letter or Frank’s signatures or that – because as I said we had papers everywhere in the office. And…I didn’t see her exactly like trace it…she had had the will and she had a piece of paper…I think I answered the phone, and she was like, I don’t know, she put the paper up like that, and she had the will on top of it going like that…we had windows and if I remember right, it was up at the window. Up at the window. We had…windows like that and they used to open up like slot things…I was answering the phones most of the time and…she was doing the signature and I did say to her to make sure it’s spot on because…it won’t pass.
Sandra identified in a photograph the specific window in the office which she said Teresa put the will against in order to trace Frank’s signature. The window was comprised of louvres or individual panels of glass that could be tilted to open. She agreed in cross examination that most of the panels in the window which she said Teresa used to trace Frank’s signature were opaque with a ‘rippled effect’ to make them ‘cloudy’. However, at least one was clearer and smooth because it had replaced a previous broken panel.
Sandra gave inconsistent evidence about when Teresa signed the will. In her affidavit filed in support of her originating motion, she deposed that she watched Teresa trace Frank’s signature on the will in late October 2011, a ‘couple of weeks’ after Frank died (14 October 2011). However, in her evidence in chief, she stated that she thought that she bought the will from the newsagency ‘a couple of weeks after [Frank’s] funeral’ (21 October 2011). In cross examination she could not recall if Teresa signed the will one week or a few days after the funeral.
‘Attesting’ witnesses
Sandra gave evidence that, on the day Teresa signed Frank’s signature, Michael came to the panel shop in the evening and asked if the will was ‘ready’. Sandra told him that it was not ‘finished’ because she had to organise witnesses to sign it. Michael asked when it would be ‘ready’, and she said that she needed to ask Raymond and Michael Senior to sign it. Sandra chose them to be witnesses because Raymond was ‘just around the corner’ and Michael Senior had been doing maintenance on some of Frank’s properties at the time Frank died.
Sandra telephoned Raymond that evening. Sandra’s evidence of their conversation was as follows:
Sandra:         You know your brother didn’t leave a will?
Raymond:      No, I…thought he had one.
Sandra:         Could you be a witness for me?
Raymond:      Yeah.
Sandra:Could you come around tomorrow night…after you finish work?
Raymond:Yes.
Sandra’s evidence was that Raymond attended the panel shop after work the next day. No one else was present. They had a conversation as follows:
Raymond:      Is the will filled in?
Sandra:         Yes, I just need your signature.
Raymond:      Okay.
According to Sandra, Raymond said that he was shocked that Frank did not leave a will. Sandra said to him something to the effect, ‘You know, we’re going to lose everything because we’ve got an actual tax bill and the mortgagees will be knocking on the door’, to which Raymond replied ‘Yeah, I know about mortgagees’. Raymond then signed the will on the desk and also wrote his name and address. They then went their separate ways, with Sandra keeping the will.

Michael Senior was direct and forthright in his evidence to the Court. His narration of events was detailed and generally consistent; his demeanour was consistent with him being a witness of truth. Although his conduct in signing an affidavit and then recanting from its contents displays an indifference towards the law, it was explicable. When Michael visited him at his home in July 2019 and told him that he wanted him to come with him to see a solicitor, Michael told Michael Senior that he was ‘going to sell everything and split it’. However, soon after he signed his affidavit dated 31 July 2019, he learnt that this was not the case and that Michael was seeking to evict Sandra from the house she was living in.[83] His affidavit in which he recanted the contents of his first affidavit was made very soon thereafter.
[83]See [107]-[108] above.

Although Michael Senior did not think that it was fair that Michael was to keep all of the estate to himself, it does not therefore follow that Michael Senior was prepared to do whatever was required to advance Sandra’s interests, including recanting from his first affidavit and giving false evidence to the Court. I reject Michael’s submissions to this effect. There is no evidence before the Court that, before these events, Sandra and Michael Senior had any sort of relationship at all, beyond being in effect related by marriage, which might render such a scenario as plausible. Michael Senior’s uncontested evidence was that he did not see Sandra from when he signed the will until he saw her at his mother’s funeral in December 2014 and that he had not spoken at all to Sandra since he signed the will (including at his mother’s funeral). Furthermore, there was no suggestion that Michael Senior stood to gain in any material or financial way in the event that probate of the will was revoked. The proposition that Michael Senior has both perjured himself in his evidence to the Court and, in doing so, further exposed himself to the risk of criminal sanction by implicating himself in the creation of a fraudulent will – all because he is aggrieved by the unfair way Sandra has been treated by Michael – tests the bounds of credulity. A more persuasive characterisation and analysis of the events is that he is telling the truth in his evidence to the Court.

The second matter of particular significance which appears to bear adversely on Michael Senior’s credibility and which demands careful consideration is the fact that his oral evidence was fundamentally different to the contents of his affidavit dated 31 July 2019 from which he has recanted. That affidavit was filed in this proceeding and records that it was sworn by Michael Senior before Mr Faba.

The affidavit was produced after Michael visited Michael Senior’s house in July 2019 and told him he wanted Michael Senior to come with him to see a solicitor. Michael told Michael Senior that he had been to court and that the judge wanted to gaol Sandra over the will because she had said that the will was false. Michael told Michael Senior to tell the solicitor that the will had been signed and was ‘alright’. Michael Senior agreed.

There is no evidence that any judicial officer has ever said anything to the effect that they ‘wanted to gaol Sandra over the will because she had said that the will was false’. On its face the statement is fanciful. However, what is fatal to Michael’s credibility on this point is that 2 August 2019 was the first occasion in which this proceeding, being the forum in which any such statement would presumably be made, was heard. That date, being the return date of Sandra’s summons for revocation, is after the date on which Michael’s Senior’s affidavit is said to have been made, 31 July 2019.

No submission was advanced that Michael’s statement to Michael Senior to the effect that ‘the judge wanted to gaol Sandra over the will because she had said that the will was false’ was the result of some misunderstanding or confusion. So much is unsurprising given the chronology of events to which I have just referred. In the circumstances, the inference which I draw is that Michael invented this statement in an attempt to manipulate Michael Senior into providing evidence to be relied upon by Michael in seeking to establish the validity of the will by giving Michael Senior the false impression that, unless he assisted in confirming to a solicitor that the will had been signed and was ‘alright’, Sandra faced the prospect of imprisonment. I make this finding having had regard to my broader impressions about Michael’s credibility as a witness to which I refer below.

There is a further serious difficulty with the evidence in relation to Michael Senior’s affidavit of 31 July 2019. Michael Senior affirmatively asserted in his evidence to the Court that his affidavit, which he referred to as a ‘statement’, was not sworn. Although it was prepared in front of him by Mr Faba in response to questions asked by Mr Faba and he understood that it was to be used in a court proceeding, his evidence was that he did not read it before he signed it and, relevantly for present purposes, he was certain that he did not swear on a Bible when it was made.

Michael Senior’s affidavit records on its face that he swore to the truth of its contents before Mr Faba. The truth of that asserted fact was squarely put in issue by Michael Senior’s oral evidence. In the course of the trial in which Mr Faba was (initially) the instructing solicitor for Michael, I raised with counsel for Michael whether, in light of Michael Senior’s evidence, he intended to call Mr Faba as a witness. Noting that Mr Faba is an officer of the Court, I also indicated to counsel that, if Mr Faba was not called as witness, it was possible I might make findings adverse to his interests.

Mr Faba was not called as a witness. The explanation for that decision given by counsel was that ‘the idea of my instructor being conflicted out by becoming a witness, and seeking adjournment of the trial and the consequences that might flow from all of that, is certainly not appealing’.

An important issue for determination in this proceeding concerns the circumstances in which Michael Senior came to place his signature on the will, purportedly as an attesting witness. Either that occurred in Frank’s presence in the panel shop as set out in Michael Senior’s affidavit of 31 July 2019, or it occurred at Michael Senior’s kitchen table in Sandra’s presence some weeks after Frank died. Given Michael Senior’s oral evidence about the circumstances in which he signed the affidavit of 31 July 2019, not only is the weight and significance to be attributed to that affidavit in issue, its very validity is in question.

In these circumstances and in particular in light of Michael Senior’s evidence that he did not swear to the truth of his affidavit, there was evidence before the Court which required an answer to the important question: was Michel Senior’s affidavit validly made? Mr Faba was the only person who was in a position answer this question. He is an officer of the Court and he self-evidently is a person who would be expected to be called by Michael, rather than Sandra.

The reason proffered as to why Mr Faba was not called as a witness was unsatisfactory. It does not explain his absence in circumstances where, after this issue was raised with the parties, Mr Faba was in any event replaced by another solicitor as the instructing solicitor in the trial. No issues about adjournments and delays were then raised. Given the change of instructing solicitors, there was no impediment of the type outlined by counsel for Mr Faba to be called as a witness in Michael’s case.

The above discussion satisfies the preconditions for the Court to apply the principles in Jones v Dunkel.[84] Those principles do not permit me to infer from the failure to call Mr Faba that the evidence he would have given would have been damaging to Michael’s case. Rather, it means that:[85]

… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.

[84]Jones v Dunkel (1959) 101 CLR 298.

[85]Ibid 308 (Kitto J) referred to by the plurality in Australian Securities Commission v Hellicar (2012) 247 CLR 345, [167] as the holding of the Court.

Michael Senior’s oral evidence to the Court is a basis for finding that he did not attest to the truth of the contents of his affidavit dated 31 July 2019. In the circumstances at hand, I consider that it is appropriate to apply the above principle, particularly in light of Mr Faba’s professional obligations. As I have explained, there was no sufficient explanation for his absence as a witness. He was uniquely placed to put a true complexion on the facts before the Court by confirming, for example, that the affidavit was properly sworn. It is of course possible that Mr Faba has no recollection of the circumstances in which Michael Senior’s affidavit was made. However, the nature of his professional obligations are such that, if he had acted in conformity with them, it must be the case that he properly administered an oath to Michael Senior before he signed his affidavit. That is, it cannot be the case that, acting in accordance with his professional obligations, he did not on this particular occasion administer an oath to Michael Senior. If Mr Faba had no recollection of the circumstances in which the affidavit was made, he could have readily addressed this by, for example, giving evidence to the effect that, although he could not remember the specific occasion, his practice in all cases when preparing affidavits is to ensure that they are properly sworn or affirmed by the deponent and that he has no reason to think that he did not adopt that approach in relation to Michael Senior’s affidavit. As an officer of the Court it was appropriate for Mr Faba to assist the Court by giving relevant evidence which he was uniquely placed to give about an important matter in dispute. That course was not pursued and no sufficient explanation has been provided for his failure to be called as a witness.

In light of the foregoing, as a result of Mr Faba’s failure to give evidence, I have greater confidence in accepting Michael Senior’s evidence that he did not swear his affidavit of 31 July 2019. Whether, ultimately, it would be appropriate to make such a finding would depend upon my consideration of other evidence including the fact that the affidavit records on its face that it was sworn by him, the circumstances in which the affidavit was made referred to in [282], as well as my assessment of Michael Senior’s credibility as a witness. It is, I consider, unnecessary to resolve these issues to finality: it is sufficient for present purposes to record that the doubt which attaches to whether the affidavit dated 31 July 2019 was properly made remains unresolved.

This conclusion, in conjunction with my finding that Michael Senior signed the affidavit after Michael falsely told him that ‘the judge wanted to gaol Sandra over the will because she had said that the will was false’, critically undermines the standing of Michael Senior’s affidavit dated 31 July 2019. As a consequence, the fact that Michael Senior’s oral evidence was fundamentally different to the contents of his affidavit, while an important consideration in assessing his evidence, is not an obstacle to my acceptance of his oral evidence.

Raymond

As I have already explained, Raymond was an unreliable witness. I do not accept his evidence for the reasons set out in [189]-[191].

Michael

Michael was responsive and measured in his evidence to the Court. There were no apparent contradictions in his evidence. He consistently denied any involvement in the events referred to by Sandra and Teresa in their evidence.

Michael’s demeanour as a witness was inscrutable. Although there were no significant contradictions or inconsistencies in his evidence, I did not have any actual sense of persuasion as to the truth of his evidence about the key controversies in the case.

Analysis

Mindful of the gravity of the allegations in this proceeding, I am affirmatively satisfied that the will was produced in the manner described in Sandra, Teresa and Michael Senior’s evidence. I prefer their evidence over Michael’s evidence in relation to contested matters for the following key reasons.

First, although not decisive, a conclusion that the will was produced in the manner referred to by Sandra in her evidence is consistent with the logic of events and the objective facts as I have explained above.

Secondly, looked at in isolation, for the reasons I have set out, I consider each of Sandra, Teresa and Michael Senior to be witnesses of truth.

Thirdly, as I have explained in [280]-[281] above, Michael attempted to manipulate Michael Senior into making an affidavit confirming that the will was ‘alright’ by creating a false impression that Sandra would be placed in serious jeopardy if he did not do so. As the sole beneficiary of an estate comprised of extensive holdings of real estate which, in conjunction with other holdings which he directly controls, comprise a parcel of about 2000m² of land in Fitzroy worth at least $15 million, Michael has an obvious motive to secure the validity of the will. Moreover, Michael has by now been administering the estate for about seven years and it is apparent from his evidence that has become resentful of Sandra and his siblings because of their failure to contribute to the burdensome task of administration, which task he has undertaken solely and at a personal cost to himself and his family.

However, I do not give this last consideration decisive weight because I am mindful that each of Sandra, Teresa and Michael Senior have also acted dishonestly. Nevertheless, having found each of those persons to be witnesses of truth in their oral evidence to the Court, it is relevant that Michael, about whom I was not able to attain the same conviction about his evidence to the Court, has behaved deceptively in relation to a matter of central importance in connection with the controversy about the will.

Fourthly, it is particularly significant that, as witnesses of truth, Sandra, Teresa and Michael Senior corroborated each other. The evidence of Sandra and Michael Senior about how the latter came to sign the will was consistent. Likewise, the evidence given by Sandra and Theresa about what occurred in the office in the panel shop when Teresa forged Frank’s signature was generally consistent, as was their evidence about earlier conversations.

In their evidence, both Sandra and Teresa identified the same louvered window against which Teresa leant to write Frank’s signature on the will. Counsel for Michael submitted that a key reason why I should reject the allegation of forgery is because both expert handwriting witnesses gave evidence that they did not believe that all or part of the signature was traced against a window.[86] I do not accept the evidence of either of the expert handwriting witnesses on this point. The function of expert handwriting evidence is to identify similarities or differences in handwriting. The evidence of Mr Ganas and Mr Holland about the likelihood that the signature on the will was traced against a window was not of this character. I do not understand that their professional expertise extends to include the expression of opinions about the capacity of individuals to write signatures on particular surfaces.
[86]See [218], [237].

In any event, the evidence of Mr Ganas and Mr Holland on this point was unpersuasive. As a matter of ordinary experience, I do not accept that it is categorically impossible for a person, like Teresa, who has had experience in signing the signature of another person, to write that signature in the manner she described in her evidence on a piece of paper placed against a louvered window. This is particularly so in circumstances where there is no evidence before me about whether the louvered window used by Teresa was open or closed at the relevant time. I prefer the evidence of Sandra and Teresa who, as I have explained, I consider were witnesses of truth.

The decision of the Court of Appeal of England and Wales in Armstrong v Anor v First York Ltd[87] is instructive about the manner in which a trial judge may proceed where there is, in effect, unanimity in the expert evidence on a question of fact, but where that evidence is contradicted by lay evidence. In a proceeding for damages arising from a motor vehicle accident, the issue at trial was whether the forces generated by the impact of the collision were sufficient to jolt the plaintiffs from their seats. A single joint expert, a forensic engineer, was called by the parties to give evidence. He was of the clear view that no ‘occupational displacement’, as it was called, could have occurred as a result of the impact. Despite this, the trial judge found for the plaintiffs. He did so because he accepted the plaintiffs’ evidence and concluded that ‘although he accepted fully that he could not say what it was – [there was] something which was not accurate in [the expert’s] evidence’.[88] In dismissing the appeal Brooke LJ observed that: [89]
[87][2005] 1 WLR 2751.
[88]Ibid 2760, [26].
[89]Ibid 2760, [27].

… there is no principle of law that an expert’s evidence in an unusual field … must be dispositive of liability … and that a judge must be compelled to find that, in his view, two palpably honest witnesses have come to court to deceive him in order to obtain damages.

To the same effect, Longmore LJ stated:[90]

There must almost always be a possibility that an expert, particularly an expert in a developing field, … could be wrong even if a judge cannot say precisely why. … If a judge is convinced, on proper evidence, that the claimants are in fact telling the truth and are not fraudulent, that conviction may well be a reason for declining to accept expert evidence to the contrary effect.

Although it may be inaccurate to characterise handwriting evidence as expert evidence in a ‘a developing field’, the underlying principles referred to by their Lordships are apposite to the circumstances of this case

[90]Ibid 2761, [35]. See also the statement by Arden LJ at [33] that ‘there is no rule that a judge has to explain why he cannot accept expert evidence at a technical level and on that evidence’s own merits’.

The above matters establish the probability that, consistent with Sandra and Teresa’s evidence, the signature on the will was written by Teresa and the improbability that it was written by Frank. That conclusion is strengthened by Mr Ganas’ expert opinion, whose evidence I preferred to that given by Mr Holland, that there was ‘very strong support for the proposition that the … signature appearing on the will … is not genuine and is the result of a simulation/forgery process’.

Mr Ganas’ opinion is not inconsistent with my own lay impression of the signature on the will and the sample signatures to which the experts had regard.[91] In particular, uninformed by the experts’ opinions, to my observation the word ‘Francis’ in the signature on the will is markedly unlike that word as it appears in the sample signatures; in particular, the verticality of the letter ‘F’ in the signature on the will is not evident in any of the sample signatures.
[91]See [207]–[208] above.

For these reasons, being conscious of the profound gravity of the allegation made by Sandra in this proceeding, I am satisfied on the balance of probabilities that the signature which appears on the will was not written by Frank, but was in fact written by Teresa two or three weeks after Frank’s death.

G. Disposition

I have concluded that Frank did not know and approve of the contents of the will and that, in any event, the will is a forgery produced after Frank’s death. In the circumstances, the grant of probate on the will made by the Court on 3 February 2012 must be revoked. It was uncontroversial that, if probate was revoked, letters of administration on intestacy should be granted to Sandra. I will so order.

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18 March 2022