Re Pozniak, Morgan v Reuben

[2005] NSWSC 766

CITATION:	Pozniak Estate: Morgan v Reuben [2005] NSWSC 766
HEARING DATE(S):	18 to 25 July, 2005
JUDGMENT DATE :	1 August 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
DECISION:	The signatures were forgeries; judgment for the Plaintiff.

CATCHWORDS:	WILLS - FRAUD - FORGERY - Whether the signatures of the deceased on a will and codicil were forgeries - whether a solicitor and his wife had falsely attested to the signatures.
LEGISLATION CITED:	Conveyancing Act 1919 (NSW) - s.163F
PARTIES:	Kurt Morgan - Plaintiff Elias Reuben - Defendant
FILE NUMBER(S):	SC 115853/03
COUNSEL:	M.S. Wilmott SC, M.W. Sneddon - Plaintiff L.J. Ellison - Defendant
SOLICITORS:	Robert King & Associates - Plaintiff Phillips Fox - Defendant

LOWER COURT JURISDICTION:

Introduction

1    The resolution of this case depends primarily on expert handwriting evidence as to whether the signatures on a will and codicil are forgeries.

2    The attesting witnesses to the signatures are a solicitor and his wife, Mr and Mrs Ryner. They have unequivocally insisted that they actually saw the deceased sign the documents. Counsel for the Defendant, Mr Ellison, has put the issue starkly but accurately thus:

“If the court finds against the documents notwithstanding the evidence of the Ryners, it can only be because the Court has come to the conclusion each of the Ryners has been jointly and severally involved (at the extreme) in fraud, perjury, conspiracy, creating false documents, false entries, and (at the other of the scale) recklessness and negligence.”

The facts

3    The uncontested facts are very few and straightforward.

4    The Plaintiff (“Mr Morgan”) is the son of the late Mrs Toni Pozniak and the Defendant (“Mr Reuben”) is her son-in-law. Mrs Pozniak was born in 1915 and died on 7 May 2003, leaving an estate valued at about $2.8M nett.

5    There are three documents which purport to be Mrs Pozniak’s testamentary dispositions and which are the subject of these proceedings. The first is a will dated 30 May 1995 (“the 1995 Will”). By that will, Mr Reuben is appointed executor and substantial bequests are made to Mr Reuben and his family. Mrs Pozniak’s signature on that will is alleged to be a forgery. The attesting witnesses to the signature are Mr Peter Ryner, the solicitor who prepared the will, and his wife, Mrs Nadine Ryner.

6    The second document is a will dated 10 January 1996 (“the 1996 Will”). By that will, another solicitor, Mr Cordell, is appointed executor and dispositions are made which are different from those in the 1995 Will. Notably, there is no bequest to Mr Reuben. There is no contest that the signature of Mrs Pozniak on the 1996 Will is genuine and that the 1996 Will was validly executed as a will.

7    The third document is a codicil to the 1995 Will. The codicil is dated 10 March 1997 (“the 1997 Codicil”). By the Codicil, a gift of certain specific property is made to a child of Mr Reuben in substitution for a gift of another specific property which had been made in the 1995 Will. The Codicil makes no mention of the 1996 Will but, after varying the bequest in the 1995 Will, it confirms the 1995 Will as Mrs Pozniak’s will.

8    Mrs Pozniak’s signature on the 1997 Codicil is alleged to be a forgery. The attesting witnesses to the signature are Mr Ryner, who prepared the Codicil, and Mrs Ryner.

9    Mr Cordell has renounced Probate of the 1996 Will. Mr Morgan has commenced proceedings seeking an order that administration of Mrs Pozniak’s estate with the 1996 Will annexed be granted to him in solemn form. Mr Reuben, by his Defence, seeks the grant to him of probate in solemn form of the 1995 Will and the 1997 Codicil.

10    These proceedings have been contested principally on the issue whether the signatures of Mrs Pozniak on the 1995 Will and the 1997 Codicil are forgeries. If they are not forgeries, it is conceded that the 1996 Will has been revoked by the 1997 Codicil, which has revived the 1995 Will, and that Probate of the 1995 Will and the 1997 Codicil should be granted to Mr Reuben. If the disputed signatures are forgeries, the 1996 Will is valid and effective as the last will of the deceased and an order for administration should be granted to Mr Morgan.

Expert evidence as to Mrs Pozniak’s disputed signatures

11    Mr Paul Westwood, a highly experienced document examiner, was called by the Plaintiff to give evidence concerning the signatures on the 1995 Will and the 1997 Codicil. For the purposes of his examination, Mr Westwood had as undisputed genuine signatures of Mrs Pozniak her signatures on the following documents: a will dated 22 May 1985, a codicil to that will dated 17 June 1985, a will dated 29 August 1990, an account identification card dated 18 January 1993, an agreement for retirement accommodation dated 4 September 1995, the 1996 Will, and a Contract for Sale of Land dated 11 March 1997.

12    It was of particular assistance in the examination that one of the genuine signatures of Mrs Pozniak was on or about 11 March 1997, the 1997 Codicil having allegedly been signed by Mrs Pozniak on 10 March 1997. Another genuine signature made on 4 September 1995 was made approximately three months after the disputed signature on the 1995 Will.

13    Even without the benefit of Mr Westwood’s analysis, it is easy to see with the naked eye that the disputed signatures of Mrs Pozniak on the 1995 Will and the 1997 Codicil differ markedly from the genuine signatures. The disputed signatures are hesitant and shaky, the letters being awkwardly formed; the genuine signatures, including the one made on 11 March 1997, are fluent and confident.

14    The genuine signatures and the disputed signatures were examined by Mr Westwood macroscopically and microscopically in order to study their structures, forms and dynamic qualities taking account of such features as direction of stroke, the presence and nature of pen stops and pen lifts, pen pressure, relative size and height, proportions, special relationships, baseline alignment and slope. Similarities and differences were recorded.

15    Mr Westwood was satisfied that the genuine specimen signatures to which I have referred were all made by the same person. He observed that those signatures were written freely and fluently with variable pen pressure and reasonable (and reasonably consistent) speed. These characteristics were markedly in contrast to the characteristics of the disputed signatures.

16    The following are the relevant portions of Mr Westwood’s report on the signatures (referred to by him as “the questioned signatures”) appearing in the 1995 Will (referred to as Document Q1) and the 1997 Codicil (referred to as Document Q2):

“12. Each of the questioned signatures on document Q1 was written using a fluid ink writing instrument such as a felt tip pen. The nature of fluid ink is such that it is readily absorbed into paper and when a fluid ink writing instrument rests in the one spot on a document for any length of time, the ink will continue to flow or “bleed” into the paper. This creates a large spot of ink on the page. Each of the questioned signatures on document Q1 exhibit a number of such ink bleeds. These observations are very strong evidence of the pen stopping and possibly lifting from the paper in multiple locations throughout the signature.

13. The questioned signature on document Q2 was written using a ballpoint pen. In contrast to the fluid ink writing instruments described above, ballpoint pens use a viscous or paste-like ink that remains on the surface of the paper. While such pens do not create ink bleeds when they rest in the one spot on a document for any length of time, microscope examination of the ink line will detect evidence of interruptions in the ink line such as pen stops and pen lifts. The questioned signature on document Q2 exhibits a number of such interruptions to the fluency.

14. In addition to evidence of pen stops and pen lifts throughout each of the questioned signatures, they each exhibit parts where the pen has moved reasonably slowly on the paper producing a “shaky” appearance of the ink line. In stark contrast, other parts of the signatures exhibit evidence of fluent and continuous pen movement. The number and nature of the pen lifts, pen stops and fluctuations in fluency in each of the questioned signatures is inherently suspicious.

…

16. In addition to the differences noted above in respect of dynamic qualities, we also observed a number of other structure and form differences between each of the questioned signatures and the Pozniak specimens. Some of these differences are described below.”

Mr Westwood then sets out the differences in the formations of the letters “M”, “T”, “P”, “o”, “z” and “a”.

17    Mr Westwood concludes:

“23. We found no evidence to suggest that any of the questioned signatures were written by the writer of the Pozniak specimens. On the basis of the number and nature of the fundamental and consistent differences observed between the questioned signatures and the Pozniak specimens, we concluded that it is highly unlikely that any of the questioned signatures were written by the writer of the specimen signatures attributed to Toni Pozniak. That is to say, it is highly probable that each of the questioned signatures was written by some person other than the late Mrs Pozniak, in an attempt to simulate the style of Mrs Pozniak’s signature.

18    In his oral evidence, Mr Westwood was more emphatic about his conclusions. He said that the signature of Mrs Pozniak on the 1997 Codicil and on the Contract for Sale dated 11 March 1997 “are so significantly different it’s just almost inconceivable … that it could be the same person”: T11.49.

19    Mr Westwood also expresses an opinion on the genuineness of Mrs Pozniak’s signature on two important documents, which he identifies as S4 and S9. He said:

“24. Similarly, we have concluded that the signatures on “specimen” documents S4 and S9 are very probably the product of some person attempting to simulate the style of Mrs Pozniak’s signature.”

20 “Document S4” is a Power of Attorney dated 25 June 1992 purportedly given by Mrs Pozniak in favour of Mr Reuben. The “signature” of Mrs Pozniak on the Power of Attorney was witnessed by Mr Ryner, who also gave a certificate under s.162F(2) Conveyancing Act 1919 (NSW) that he had explained the general effect of the Power of Attorney to Mrs Pozniak before the document was executed by her, and that he had attested Mrs Pozniak’s execution of the document.

21 In cross examination Mr Ryner admitted, after a great deal of evasion, that he had not witnessed the signature of Mrs Pozniak on the Power of Attorney, that the certificate under s.163F(2) which he had given was false, that he had made a false declaration verifying the Power of Attorney, and that the purported signature of Mrs Pozniak on the Power of Attorney was a forgery: T149.12–150.21; T170.7–.31. Mr Westwood’s conclusion as to the genuineness of Mrs Pozniak’s signature on the Power of Attorney was justified.

22    I will come to the circumstances in which the Power of Attorney was obtained in due course.

Expert evidence as to Mrs Ryner’s disputed signatures

23    “Document S9” referred to in Mr Westwood’s report (now Exhibit P11) is a file note of Mr Ryner containing his handwritten notes of what he says are the instructions given to him by Mrs Pozniak for the preparation of a will in 1992. He says that he took the instructions when he went to see Mrs Pozniak in the Prince of Wales Hospital and that he obtained Mrs Pozniak’s signature on the document as confirmation of his instructions.

24    A signature purporting to be that of Mrs Ryner also appears on Exhibit P11. Mrs Ryner says that she went with Mr Ryner to a hospital while Mr Ryner took instructions from Mrs Pozniak. She confirms that the signature “N. Ryner” appearing on Exhibit P11 is her signature.

25    As I have noted, Mr Westwood is of the opinion that the purported signature of Mrs Pozniak on Exhibit P11 is very probably a forgery. A signature purporting to be that of Mrs Ryner appears not only on Exhibit P11, but as attesting witness of the purported signatures of Mrs Pozniak on the 1995 Will and the 1997 Codicil.

26    Mr Westwood has undertaken an examination of the signatures “N. Ryner” appearing on the 1995 Will, the 1997 Codicil and Exhibit P11. In that examination, he has had as undisputed genuine signatures of Mrs Ryner her signatures on eight documents: a Memorandum of Transfer registered on 3 December 1981, a Memorandum of Transfer dated 16 March 1984, an application to the Registrar General to record a change of name dated 1 September 1993, another such application dated 9 June 1994, a company annual return dated 7 November 1994, a Memorandum of Transfer dated 18 March 1997, and an annual return dated 19 January 1998.

27    In addition, there is the undisputed genuine signature of Mrs Ryner on an affidavit sworn on 12 July 2005 in these proceedings. Mr Westwood was shown this signature in the witness box and said that it did not alter the opinions which he had formed.

28    Even the untrained eye can see an obvious similarity in all of the undisputed genuine signatures despite the fact that the earliest is in 1981 and the latest is 2005. In particular, the formation of the “N” is the same, there is a full stop after the “N”, and the “er” at the end of “Ryner” is pronounced and distinctive.

29    On the other hand, the untrained eye can see that the three disputed signatures of “N Ryner” are very similar to each other but are very different from the nine genuine signatures. It is particularly significant in this regard that one of the genuine signatures is dated 18 March 1997, only eight days after Mrs Ryner purportedly witnessed the 1997 Codicil by a signature which is markedly different from the genuine signatures, although very similar to the other two disputed signatures.

30    Mr Westwood compared the “N Ryner” questioned signatures on the 1995 Will, the 1997 Codicil and Exhibit P11 with the eight genuine signatures of Mrs Ryner (called the “N. Ryner Specimens”). His conclusions are as follows:

“15. Individual and collective comparisons of the pictorial features of the questioned signatures and N Ryner specimens revealed a number of significant and consistent differences between them. These differences include:

a) the letters “N” in the questioned signatures are generally taller and narrower than the letters “N” in the N Ryner specimens;

b) the letters “R” in the questioned signatures are generally taller and narrower than the letters “R” in the N Ryner specimens;

c) the structures of the letters “R” in the questioned signatures (but not the initials) consist of two distinctly separate pen strokes, whereas in the specimens they appear to consist of only one continuous stroke;

d) the upper curved section of the letter “R” in each questioned signature is a much more prominent signature feature than in the N Ryner specimens;

e) the body of the letter “e” in each questioned signature is formed by a retraced or almost retraced pen movement, whereas in the specimens they are formed by a looped pen movement;

f) the letter “r” in each questioned signature is nondescript, formed only by an upward rising diagonal pen stroke to the right, whereas this letter in each of the N Ryner specimens exhibits a more legible form with two angular changes in pen direction terminating in an almost horizontal direction; and

g) the size ratio of upper case letters to lower case letters is at least 4:1 the questioned signatures and approximately 2:1 in the N Ryner specimens.

16. I found no evidence to suggest that any of the questioned signatures were written in original form by the writer of the N Ryner specimens. On the basis of the number and nature of the differences observed, I concluded that it is unlikely that any of the questioned signatures were written by the writer of the N Ryner specimens.”

31    No expert was called by the Defendant to contradict Mr Westwood’s evidence. He was cross examined by Mr Ellison of Counsel, who appears for Mr Reuben, but no basis for attacking Mr Westwood’s conclusions was revealed. In the end, Mr Ellison merely put to Mr Westwood that he was wrong in his conclusions, and left the matter there. No evidence was given by Mr and Mrs Ryner to the effect that Mrs Pozniak was under some particular disability or suffering from some particular infirmity at the time she made the disputed signatures which might explain their peculiarity. In his final submissions, Mr Ellison did not submit that Mr Westwood’s evidence was flawed and that it should not be accepted. His submission was that Mr Westwood’s evidence was only an opinion and that the sworn evidence of Mr and Mrs Ryner should prevail over it.

32    I regard the evidence of Mr Westwood as essentially unchallenged. It is cogent and convincing; it supports by detailed analysis that which is, in any event, apparent even to the naked eye of the untrained observer: the three disputed signatures of Mrs Pozniak are very different from her seven genuine signatures, some made close in time to the disputed signatures; the three disputed signatures of Mrs Ryner are very different from her nine genuine signatures, one of which is very close in time to the disputed signature on the 1997 Codicil. In addition, Mr Westwood concluded that Mrs Pozniak’s signature on the Power of Attorney was “very probably” a forgery; Mr Ryner has conceded that that signature is, indeed, a forgery.

33    However, both Mr and Mrs Ryner repeatedly and unequivocally insist in their evidence in cross examination that they were both present and saw Mrs Pozniak sign the 1995 Will and the 1997 Codicil. They both insist that Mrs Pozniak’s three disputed signatures are genuine. Mrs Ryner insists that her disputed signatures on the 1995 Will and the 1997 Codicil are indeed her signatures.

34    Expert evidence is, in the end, only an opinion. It is a very grave matter indeed to find as a fact that a solicitor has falsely attested the execution of a will. It is even graver to make that finding on the basis that the solicitor has perjured himself in this Court, particularly when, as here, the solicitor vehemently and earnestly protests his innocence of any wrongdoing and is supported by the evidence of another witness. The standard of proof required to make such findings, while not the criminal standard, must be fairly close to it.

35    With these considerations in mind, I turn to the assessment of the credit of Mr and Mrs Ryner, upon which the case ultimately turns.

A fabricated file note

36    Mr Ryner produced a file note of a conference he says he had with Mrs Pozniak during which he took instructions for the 1997 Codicil. He says that during that conference he prepared the codicil himself on his word processor in Mrs Pozniak’s presence and had Mrs Pozniak execute the codicil there and then, her signature being witnessed by himself and Mrs Ryner, who happened to be present in his office.

37    The original of the file note is Exhibit P17. It is in Mr Ryner’s handwriting, as follows:

“20/3/97

Mrs Pozniak –
Wants property to go to
grandson as property sold

NB did will to please Kurt copy
wants to revoke.
advised her to contact Norton Smith
important – said she alread [sic]

1995 Will OK but will confirm
in codicil only

rec – New Will – advised – revoc –
client only wants Codicil –
only change to Will”

38    Mr Ryner says that he wrote the file note on the same day as the Codicil was signed: T34.25, T33.7. He said that he wrote the file note after the Codicil was signed: T35.22-.31.

39    The first anomaly about the file note is that it is dated 20 March 1997 whereas the Codicil is dated 10 March 1997. Mr Ryner’s explanation for the discrepancy was that Mrs Pozniak had earlier made an appointment to come to see him on 20 March but had cancelled that appointment and had come to see him on 10 March instead. Nevertheless, how it could happen that that circumstance induced Mr Ryner to date his file note ten days later than the date upon which he was writing it was never satisfactorily explained: T34.46-.56.

40    The second anomaly about the file note is that although Mr Ryner said that he wrote it after he had prepared the Codicil and had it executed by Mrs Pozniak, the terms of the file note record instructions for a codicil to be prepared: e.g. “wants property to go to grandson” … “wants to revoke” … “1995 Will OK but will confirm in codicil only” … “client only wants codicil”. These notations do not suggest that these instructions had actually been carried out by the time that Mr Ryner wrote this file note. Mr Ryner was confronted with this anomaly but could give no satisfactory explanation: T37.16-.53.

41    These anomalies give rise to the suspicion that the file note is not genuine. However, conclusive evidence that this file note is indeed a fabrication is provided by Mr Westwood’s analysis of the document.

42    Mr Westwood subjected the document to examination using the Electrostatic Detection Apparatus (“ESDA”). The process enables one to read the impressions left on a sheet of paper when someone has written on another sheet of paper placed over the top of it.

43    Mr Westwood’s analysis showed that Mr Ryner’s file note dated 20 March 1997 bore the impression of Mr Ryner’s handwriting on a draft letter to Messrs Colin Biggers & Paisley. The letter to Colin Biggers & Paisley was produced. It was dated 19 May 2003. The ESDA analysis showed that the sheet of paper on which Mr Ryner had written the draft letter to Colin Biggers & Paisley on 19 May 2003 had, at the time of its writing, been directly on top of the piece of paper on which the file note dated 20 March 1997 was written.

44    Mr Ryner had been provided with a copy of Mr Westwood’s report before the trial. In examination in chief, he sought to explain how the impression of the 2003 writing had been left on the file note dated 20 March 1997.

45    Mr Ryner said that on 19 May 2003 Mr Reuben had come into his office to discuss the estate of Mrs Pozniak, who had died two days earlier. Mr Ryner had on his desk the Pozniak file. During the course of the conference, Mr Ryner took a call from a client in a conveyancing matter in which Colin Biggers & Paisley were the solicitors on the other side. As a result of that call, he was required to write an urgent letter to Colin Biggers & Paisley.

46    Mr Ryner said that instead of dictating something to his secretary, he took a sheet of paper from the printer/copier that was next to him, put the piece of paper on top of the Pozniak file and wrote the draft letter to Colin Biggers & Paisley. It so happened that the file note dated 20 March 1997 was underneath the blank sheet of paper on which Mr Ryner was writing so that the impression of the draft letter to Colin Biggers & Paisley was left on the file note underneath: T42.9-.49.

47    It is strange that, although on very many occasions in his cross examination when confronted with inconsistencies in his evidence Mr Ryner protested that his recollection was very vague about what had happened some years ago, his recollection was clear about what happened on this particular occasion in 2003 concerning a detail of no significance at the time: T45.37-47.14.

48    However, Mr Ryner’s explanation of how the file note dated 20 March 1997 came to bear the imprint of a document which he wrote nearly six years later is demonstrably false. The ESDA analysis to which Mr Westwood subjected the 20 March 1997 file note is able to detect whether a person has written on a piece of paper before or after impressions have been left on it by another writing.

49    If Mr Ryner had written the file note dated 20 March 1997 and later placed on top of it another piece of paper on which he had written the Colin Biggers & Paisley letter, the ESDA test of the file note would produce an image of the two writings superimposed in which the intersections showed black.

50    On the other hand, if Mr Ryner had written the Colin Biggers & Paisley letter on one sheet of paper with a second blank piece of paper underneath it, and had then written on the second blank sheet the file note dated 20 March 1997, the ESDA test of the file note would show an image of the two writings superimposed in which the intersections showed white.

51    The ESDA test of the file note shows in the order of 130 intersections of the superimposed writings. All of the intersections were observed to be white.

52    This means that when Mr Ryner picked up a piece of paper and wrote on it the file note which he dated 20 March 1997 the piece of paper already had imprinted on it the impression of the letter to Colin Biggers & Paisley which Mr Ryner had written on 19 May 2003. It was impossible for that piece of paper to have had those impressions in March 1997. Mr Ryner wrote the file note which he dated 20 March 1997 some time after he wrote the letter to Colin Biggers & Paisley on 19 May 2003.

53    Mr Westwood expresses his conclusions in his report as to the time of writing of the 20 March 1997 file note not in the usual language of possibility or probability but, rather, with “a high degree of certainty”: report 3 June 2005, para 14. None of Mr Westwood’s evidence as to the 1997 file note was challenged.

54    I conclude that Mr Ryner deliberately fabricated the 20 March 1997 file note in May 2003, shortly after Mrs Pozniak’s death. I conclude that he deliberately gave false evidence as to how that file note was first made and as to how the paper on which it was written came to bear the impression of a letter which he wrote in May 2003.

A false “1992 Will” and a falsified file note

55    Mr Ryner gave evidence that in June 1992 he had his first professional meeting with Mrs Pozniak when, at the request of Mr Reuben, he and Mrs Ryner went to see Mrs Pozniak in Prince of Wales Hospital. He produced a file note of instructions for a will which he said he had taken on that occasion (Exhibit P11). He said that the file note had been produced at the time he took instructions. The file note bears a purported signature of Mrs Pozniak and a purported signature of Mrs Ryner. Both signatures are disputed.

56    Mr Ryner says that in accordance with the instructions which he took he prepared a will for Mrs Pozniak which she executed. The will was dated 25 June 1992. He says that the executed will was placed in a safe custody packet in his office and that he himself wrote on the safe custody card recording documents held for Mrs Pozniak the words “Will dated 25th June 1992”: Exhibit D2.

57    Mr Ryner says that the 1992 Will was revoked when Mrs Pozniak made the 1995 Will. He says that 1992 Will, which was still on his computer, was used as a precedent for the 1995 Will as the 1995 Will contained relatively minor changes: T137.35-.40, T163.27-.38. Both the 1992 Will and the 1995 Will, according to Mr Ryner, contained bequests in favour of Mr Reuben.

58    Mr Ryner says that the 1992 Will was destroyed by Mrs Pozniak upon its revocation in 1995 and that no copy of the 1992 Will can now be found.

59    Mr Ryner was unequivocal in his evidence that he had taken instructions for the 1992 Will from Mrs Pozniak when she was in Prince of Wales Hospital: T30.12-.15, T85.15-.17, T140.31-.37.

60    His file note (Exhibit P11) bears note in his handwriting: “URGENT WILL Sunday evening”. At the top there is a stamped date “20 June 1992” and a date at the bottom in Mr Ryner’s handwriting “20/6/92”. However, at the top of the file note something has been obliterated by scribbling over. Mr Westwood’s examination shows that what has been obliterated is the date “20 August 1992”. It is also relatively easy to see that in the handwritten date at the foot of the page, i.e. “20/6/92”, the “6” has been written over an “8”. Mr Ryner concedes that he made these changes to the dates on Exhibit P11.

61    The explanation which Mr Ryner first gave for changing the date stamp at the top of the page was rambling and bordered on the ludicrous: he said that he had made the notes on the document on the evening of Sunday, 20 June 1992, and the date stamping machine which he later used to date the document could have had the wrong date on it because children might have been playing with it. He said that when he noticed that the date stamp “20 August 1992” was wrong, he placed the correct date stamp on the page and obliterated the wrong date stamp: T84.53-85.17.

62    At first Mr Ryner insisted that he had written the date “20/6/92” on the file note on 20 June 1992: T85.29-.33. How he could have handwritten “20/8/92” on 20 June and made the same mistake with the printed date stamp was not explained.

63    Medical records produced on subpoena show that Mrs Pozniak was admitted to Prince of Wales Hospital on 24 August 1992 and that she had not been in Prince of Wales Hospital in June 1992. It was, therefore, impossible that Mr Ryner was correct in his evidence that the file note was a record of an interview which he had had with Mrs Pozniak in Prince of Wales Hospital in June 1992. It was also pointed out that 20 June 1992 was a Saturday not a Sunday, as recorded in Mr Ryner’s file note.

64    Eventually, Mr Ryner conceded that the file note, Exhibit P11, was brought into existence in August, not June, 1992 and that he had later changed the stamped and handwritten dates on the document to record June rather than August. He could give no reason for having done so: T144.26-.58.

65    As Mr Ryner had not taken instructions from Mrs Pozniak for any will prior to August 1992 at the earliest, Mr Ryner conceded that he could not have prepared a will for her which she had executed on 25 June 1992 and that the entry in his handwriting on Mrs Pozniak’s safe custody register card (Exhibit D2) showing a will dated 25 June 1992 was false: T146.4-.58.

A false solicitor’s certificate

66    As I have noted above, Mr Ryner ultimately conceded in cross examination that Mrs Pozniak’s signature on the Power of Attorney dated 25 June 1992 was a forgery, that his attestation of that signature was false, and that he had given a false solicitor’s certificate: T149.10-T150.21.

67    Mr Ryner said that he could not recall how he came to sign the Power of Attorney but he said that he was asked to prepare one by Mr Reuben when Mrs Pozniak was in hospital and gravely ill. He said that it was likely that he gave the form of the Power of Attorney to Mr Reuben to enable him to procure Mrs Pozniak’s signature. Mr Ryner said that he believed that the Power of Attorney was being procured to assist Mrs Pozniak’s family to get her into a nursing home and to pay her debts: T171.43-T173.4.

68 The giving of a General Power of Attorney is, of course, a very serious matter: it places in the hands of the grantee the power to deal with the grantor’s property in any way the grantee wishes – even to the extent of defrauding the grantor. It is to protect against abuses to which Powers of Attorney may be put that s.163F Conveyancing Act 1919 (NSW) requires that a solicitor gives a certificate that he or she has explained to the grantor the effect of a Power of Attorney before it is executed and that the execution of a Power of Attorney be attested by a “prescribed person”, such as a solicitor, who may be relied upon to ensure that the Power of Attorney is actually signed by the real grantor.

69 That Mr Ryner was prepared to attest falsely a purported signature on a Power of Attorney and to give falsely a certificate under s.163F Conveyancing Act demonstrates that he is prepared to breach his duty as an officer of the Court in a very serious way.

Whether 1997 Codicil was a forgery

70    I approach the determination of the question of the genuineness of Mrs Pozniak’s signature on the 1997 Codicil with the following considerations in mind:

-– on the one hand, Mr and Mrs Ryner have earnestly and repeatedly asserted that they saw Mrs Pozniak actually sign the Codicil so that to disbelieve their evidence would require a finding of perjury;

-– on the other hand, Mr Ryner has:

fabricated a file note dated 20 March 1997;

given false evidence about when and how that file note came into existence;

given false evidence about the time and manner in which the 1992 Will was said to be executed;

made false entries on the file note, Exhibit P11, as to the date upon which he took instructions from Mrs Pozniak;

made a false entry on the safe custody packet card for Mrs Pozniak showing a will dated 25 June 1992;

falsely attested a forged signature of Mrs Pozniak on the Power of Attorney dated 25 June 1993;

falsely given a certificate under s.163F in relation to that Power of Attorney.

71    In those circumstances, I have no choice but to conclude that Mr Ryner is a person who is willing to commit perjury and who is willing to fabricate evidence to support his assertions if he thinks that it is in his interest to do so.

72    I turn now to a consideration of the terms of the 1997 Codicil, putting aside for the moment the expert evidence as to the genuineness of the signatures.

73    The Codicil states that the alteration in the 1995 Will is made because “I have sold” the property given in that Will to Mr Reuben’s son, i.e. 25/22 Wellington Street, Bondi, “to purchase the property at 54/243 Anzac Parade, Kingsford”.

74    However, as at the date of the Codicil, 10 March 1997, the Bondi property had not been sold. It was put to auction on the following day, 11 March, and contracts were exchanged on that date. There could have been no guarantee on 10 March 1997 that the property would not be passed in at the auction. However, Mr Ryner says that as at 10 March 1997 he and Mrs Pozniak believed that the Bondi property would be sold at the auction.

75    Further, although contracts for the purchase of the Kingsford property had been exchanged, the purchase had not been completed by 10 March 1997. As at that date it was possible that the Bondi property would not be sold, at least for some time, and that the purchase of the Kingsford property might fall through. In those circumstances, it was premature and imprudent for Mrs Pozniak to alter her 1995 Will on 10 March 1997 in anticipation of events which might unfold differently and make another codicil necessary.

76    Neither Mr Ryner nor Mr Reuben have given any evidence of any circumstance requiring a codicil to be made urgently by Mrs Pozniak on 10 March 1997 rather than abiding the outcome of the sale and purchase of the property contemplated in the Codicil.

77    I regard it as highly improbable, in those circumstances, that a responsible and competent solicitor would have advised Mrs Pozniak on 10 March 1997 to proceed with execution of the Codicil.

78    Mr Ellison says that there are seven facts and circumstances forming a matrix which supports the genuineness of the 1997 Codicil.

79    First, Mr Ellison refers to the evidence of Mr Elias, who is connected to Mr Reuben’s family in some unspecified way: see Mr Elias’ affidavit, 28 June 2005, paras 1 and 3. Mr Elias says that he assisted Mrs Pozniak to move into her unit at Kingsford. He says that Mrs Pozniak told him at that time that the unit was for Mr Reuben’s son. He says also that in 2003, when he visited Mrs Pozniak in company with Mr Reuben, his wife and two children, Mrs Pozniak said: “Don’t worry about your future. I’ve made sure that you are all going to be looked after once I am gone. I’ve left a unit for each of you”.

80    I do not regard this evidence as strongly supporting the conclusion that in March 1997 Mrs Pozniak actually made a disposition in favour of Mr Reuben’s son in the terms of the 1997 Codicil, or that in 2003 she acknowledged that she had in fact executed that Codicil. Even if Mrs Pozniak had used the words attributed to her by Mr Elias in February 1997 it does not follow that she actually implemented her stated intention. Intentions often change, for all kinds of reasons.

81    Further, the words attributed to Mrs Pozniak in 2003 are capable of referring to the 1996 Will, in which a unit is left to each of Mr Reuben’s wife and children but not to Mr Reuben. In the face of all of the evidence casting doubt upon the genuineness of 1997 Codicil it is unrealistic to place decisive weight on Mr Elias’ recollection that in 2003 Mrs Pozniak said that she had left a unit “to each of you”, especially as one has no detail of the context in which the words were spoken. Mrs Pozniak may well have been engaged in a conversation with Mrs Reuben and her two children so that the words “each of you” were intended to mean them but not Mr Reuben.

82    Second, Mr Ellison refers to the evidence of Mr Reuben, who says that he recognises the signature of Mrs Pozniak on the 1995 Will and the 1997 Codicil.

83    Bearing in mind that Mr Reuben himself gains substantially if the 1995 Will and the 1997 Codicil are upheld and bearing in mind that, on Mr Ryner’s evidence, Mr Reuben procured a Power of Attorney for Mrs Pozniak dated 25 June 1992 when he must have known that the signature had not been witnessed by Mr Ryner, I am not able to accept Mr Reuben’s evidence with any degree of assurance.

84    It is relevant to note that in 1997 Mrs Pozniak did not trust Mr Reuben in his dealings with her financial affairs nor, apparently, did she regard him with any affection. Notes produced by Mrs Pozniak’s treating psychiatrist, Dr Schneeweiss, contain records of his discussions with Mrs Pozniak from 18 July 1997 to 6 August 1997. The entry for 20 July 1997 records, inter alia:

“She is under the impression that her son-in-law somehow managed to arrange for her will to be changed. Also talked about having the title deeds to some units held in the Commonwealth Bank at Bondi Junction to which her son-in-law allegedly has the keys. Referred to a Mr Stephen Cordell, who was supposed to have drawn up some deed, as a result of which he willed one hundred thousand dollars to the JNF. Is now talking about wanting to provide adequately for her son, who is allegedly almost blind and who has two children also effected [sic] by some visual disorder. Does not want to leave anything for her single daughter and wants to make some provisions for her married daughter and there [sic] children, but certainly does not wish the daughter and son-in-law to inherit her wealth as such .”
[Emphasis added.]

85    From these notes it appears that by July 1997 Mrs Pozniak was troubled about what Mr Reuben may have done about her testamentary dispositions without her knowledge. It is significant that she did not say to Dr Schneeweiss that she herself had made a new testamentary disposition in March that year.

86    These circumstances cause me to conclude that I cannot place substantial weight on Mr Reuben’s evidence authenticating Mrs Pozniak’s signature or otherwise corroborating the genuineness of the 1997 Codicil.

87    The third circumstance in the matrix of circumstances upon which Mr Ellison relies is the fact that entries appear in Mr Ryner’s 1997 diary which support his account of events. There is an entry for 10 March 1997 as follows: “Codicil Toni Pozniak – appointment to sign contract”. There is an entry for 20 March showing an appointment for Mrs Pozniak which is cancelled. Both entries are in Mr Ryner’s handwriting.

88    The 1997 diary was called for under a subpoena served long before commencement of the trial. The diary was not then produced. Mr Ryner’s explanation was that he had given all his relevant documents to Mr Reuben’s solicitors. However, late in the course of the trial, the diary was produced from Mr Ryner’s possession.

89    I bear in mind the lateness of the production of the diary and its tender in the course of Mr Ryner’s cross examination so that there was no opportunity for an analysis by Mr Westwood of the genuineness of the relevant diary entries. I bear in mind also Mr Ryner’s willingness to fabricate evidence in support of his position. In those circumstances, I can place no weight on the 10 March and 20 March entries in the 1997 diary.

90    The fourth circumstance relied upon by Mr Ellison is what Mrs Pozniak said to Dr Schneeweiss in July 1997, as recounted in the doctor’s notes. For the reasons which I have given above, I regard these statements as indicating, if anything, that it was unlikely that Mrs Pozniak would have made or confirmed in March 1997 any testamentary disposition in favour of Mr Reuben.

91    The fifth circumstance relied upon by Mr Ellison is a statement concerning the Codicil made by Mr Ryner to Dr Schneeweiss on 24 July 1997, as recorded in Dr Schneeweiss’ notes. The note records:

“P1420: Mr Peter Ryner

In reply to my question as to whether he was her solicitor, he replied that he thought he was and that he had last seen her in connection with adding a codicil to her will. He confirmed that the son-in-law had a power of attorney. When her unit form [sic] Bondi was sold it seems that the son-in-law signed the transfer under his power of attorney. The codicil to her will had something to do with making sure that the proceeds of that property would go to one particular grandchild.

The conversation was cordial and I indicated that, depending on circumstances, I might wish to set up a meeting together with him round the bedside of Mrs Pozniak.”

92    The weight to be attributed to this statement, which is hearsay as far as the existence and validity of the Codicil is concerned, depends entirely upon Mr Ryner’s credit. A “codicil” may well have been in existence by 24 July 1997 – the question is: had that codicil been signed by Mrs Pozniak? The credibility and weight of Mr Ryner’s statement to Dr Schneeweiss rise no higher than his evidence in this case.

93    The sixth circumstance relied upon by Mr Ellison is, he says, that the 1995 Will was out of date by 10 March 1997 because of the sale of the Bondi property. For the reasons which I have given above, I do not agree. As I have said, in my opinion it would have been premature and imprudent to have executed the 1997 Codicil in anticipation of events which had not yet occurred.

94    The seventh circumstance relied upon by Mr Ellison is the fact that “multiple attendances (by Mrs Pozniak) on the solicitor with regard to the sale and purchase were as good a time as any to change the 1995 will”. I am not satisfied that there were “multiple attendances” by Mrs Pozniak on Mr Ryner in March 1997. Further, as I have said, execution of the 1997 Will was premature and imprudent and there was no evidence suggesting that the execution of a codicil could not await completion of the conveyancing transactions.

95    For these reasons I do not find any support for the authenticity of the 1997 Codicil in the matrix of circumstances upon which Mr Ellison relies.

96    I come now to the question of Mrs Ryner’s signatures on the Codicil. That question raises also the genuineness of her signatures on the 1995 Will and on the file note dated 20 June 1992, Exhibit P11.

97    I have set out at paragraphs 20-28 above the expert evidence relating to Mrs Ryner’s disputed signatures. As I have noted, Mr Westwood’s evidence in that regard was cogent, convincing and unchallenged. I take into account the following further considerations.

98    As I have observed, Mrs Ryner’s disputed signatures bear a marked similarity to each other; likewise, her genuine signatures bear a marked similarity to each other. None of the nine genuine signatures is similar to the disputed signatures. Mrs Ryner was shown the genuine signatures and the disputed signatures for comparison and was asked whether she agreed that the two styles of signatures were different. She agreed, with some reluctance, although the differences are quite obvious, particularly in the formation of the last two letters of Mrs Ryner’s signature: T301.7-T302.17.

99    Mrs Ryner said that she had two sorts of signature: one exemplified by the genuine signatures, the other exemplified by the disputed signatures, and that she signed both sorts of signature on occasion, using either one or the other for no particular reason: T302.38-.49.

100    In other words, Mrs Ryner was not saying that her signature had changed over time. She could hardly say that because the aberrant disputed signatures were “sandwiched” between genuine signatures which remained essentially the same from 1981 to 2005.

101    Mrs Ryner was asked to sign her name with the signature which she used for the genuine signatures. She was then asked to sign her name with the signature she had used for the 1995 Will, the 1997 Codicil and Exhibit P11. The piece of paper on which the two signatures were made was admitted into evidence without objection as Exhibit P31.

102    The first signature which Mrs Ryner made is clearly very similar to the genuine signatures, particularly her signature on her affidavit of 12 July 2005. However, the second signature is discernibly different from the disputed signatures: the formation of the letter “R” bears no resemblance to the letter “R” in the disputed signatures; the formation of the last two letters of the second signature bears no resemblance to the formation of the last letters in the signatures on the 1995 Will, the 1997 Codicil and Exhibit P11. On the other hand, Mrs Ryner’s second signature bears a marked resemblance to her first signature on Exhibit P31 and to the other genuine signatures.

103    If Mrs Ryner had been able to sign her name with a signature which resembled the disputed signatures her evidence that she used two different styles of signature would have had considerable weight. However, her inability to make a signature resembling the disputed signatures makes highly improbable her evidence that she used two discernibly different signatures at any time.

104    For these reasons, and despite Mrs Ryner’s repeated assertions to the contrary, I am satisfied by the evidence of Mr Westwood that the disputed signatures of Mrs Ryner on the 1995 Will, the 1997 Codicil and Exhibit P11 are forgeries. It follows that I do not accept Mrs Ryner’s evidence that she was present and saw Mrs Pozniak sign the 1997 Codicil.

105    The only other person who attests to the genuineness of Mrs Pozniak’s signature on the 1997 Codicil is Mr Ryner. Because I have found that Mrs Ryner’s signature on the 1997 Codicil is a forgery it follows that I cannot accept Mr Ryner’s evidence that he was present when Mrs Ryner attested Mrs Pozniak’s signature to the 1997 Codicil. For the reasons I have already given, I do not accept Mr Ryner as a witness of any credit in any event.

106    In these circumstances, I accept the evidence of Mr Westwood that Mrs Pozniak’s signature on the 1997 Codicil is a forgery. It follows that Mr Ryner has falsely attested to the execution of that document. I make this finding fully conscious of its gravity and of the standard of proof which should be applied.

Conclusion as to 1997 Codicil

107    For these reasons, I hold that Mrs Pozniak did not execute the 1997 Codicil and that that document has no legal effect.

108    The 1996 Will is validly executed and revokes all prior testamentary dispositions. Even if the 1995 Will was genuinely executed by Mrs Pozniak it has been revoked by the 1996 Will, which is now established as Mrs Pozniak’s last Will.

109    Letters of Administration of the estate of Mrs Pozniak with the 1996 Will annexed should be granted to Mr Morgan.

Conclusion as to the 1995 Will

110    Strictly speaking, it is unnecessary for me to consider the validity of the 1995 Will as, even if it is genuine, it has been revoked. However, in view of the seriousness of the allegations which have been made, I should shortly state my conclusions.

111    For the reasons which I have given, I have held that all three disputed signatures of Mrs Ryner are forgeries. It follows that I do not accept that she attested the 1995 Will, as she asserts. I do not accept Mr Ryner’s evidence that he saw his wife attest the 1995 Will. I do not regard his evidence that he saw Mrs Pozniak sign the 1995 Will as worthy of any credit.

112    Accordingly, I accept the evidence of Mr Westwood that Mrs Pozniak’s signature on the 1995 Will is a forgery.

Orders

113    The orders of the Court are:

i) order that administration with the Will dated 10 January 1996 annexed of the estate of the late Toni Pozniak be granted to Kurt Morgan in solemn form subject to due compliance with the Rules of the Court;

ii) order that the administration bond be dispensed with;

iii) order that the matter be remitted to the Registrar to complete such grant.

Consequences

114    Because my findings as to Mr Ryner bear on his fitness to continue to practise as a solicitor, a copy of this judgment will be forwarded to the Law Society of New South Wales and the exhibits, other than the 1996 Will, will be retained by the Court until further order.

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