Weisbord v Rodny; Rodney v Weisbord

[2018] NSWSC 1866

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Weisbord v Rodny; Rodny v Weisbord [2018] NSWSC 1866

Hearing dates:

9 - 19 October 2017; 13 November 2017; 9 - 12 April 2018

Decision date:

06 December 2018

Jurisdiction:

Equity

Before:

Robb J

Decision:

1. The plaintiffs are entitled to an order revoking the grant of probate made by this Court on 15 January 2016 to the defendant of the will of the late Rose Rodny made on 19 December 1997.

 

2. The plaintiffs are entitled to an order granting administration with the document described in par 4(d) of the amended statement of claim as the “unsigned Will prepared in August 2008” (being the final form of the document prepared by John Lloyd, Solicitor, on 15 August 2008) annexed to an appropriate administrator of the estate of the late Rose Rodny.

 

3. The defendant’s cross claim is to be dismissed.

 

4. Consequently upon orders in terms of pars 1 and 2 being made, each of the plaintiffs’ claims for family provision orders is to be dismissed.

 

5. The parties are to bring in short minutes of order within 14 days to give effect to these reasons (see pars 534 to 543 below), and if agreement cannot be reached, the proceedings may be relisted by arrangement with the associate to Robb J.

 

6. The Court will hear the parties as to the costs of the proceedings, if agreement is not reached between them, by arrangement with the associate to Robb J.

 7. The parties may within 7 days make suggestions to the associate to Robb J as to the appropriate application of the Court’s Identity theft prevention and anonymisation policy to these reasons, and these reasons will not be published until after that period has elapsed.

Catchwords:

SUCCESSION — Wills, probate and administration — Probate and letters of administration — Construction and effect of testamentary dispositions — Contending wills — Whether a grant of probate of the deceased’s 1997 will should be revoked and administration should be granted to an appropriate administrator with a draft will of the deceased prepared on 15 August 2008 annexed — Application of s 8 Succession Act 2006 (NSW) — Alternatively, application of principles concerning lost wills — Where deceased had the intention to make a new will in terms of a draft will — Where no signed will in those terms has been found after the deceased’s death — Where the deceased made statements to the effect that she had made a new will in the terms of the draft will — Where the evidence was inadequate to establish the particular reasons why the deceased understood that she had made a new will in the terms of the draft will — Where it is not possible to identify the particular document of a number of identical versions of the draft will that the deceased intended to operate as her will — Where the deceased may not have seen the final version of the draft will although it was prepared in accordance with her instructions — Where it is possible that the deceased did execute a version of the draft will but the will has been lost — The plaintiffs are entitled to orders revoking the grant of probate of the 1997 will and an order that a grant of administration be made with the draft 2008 will annexed.

Legislation Cited:

Succession Act 2006 (NSW)
Probate and Administration Act 1898 (NSW),

Cases Cited:

Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856
Yazbek v Yazbek [2012] NSWSC 594
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the estate of Ralston, 12 September 1996, Supreme Court of New South Wales, unreported (BC 9604329)
Cahill v Rhodes [2002] NSWSC 561
Payten v Perpetual Trustee Company [2005] NSWSC 345
Clines v Johnston [2008] NSWSC 524
Deeks v Greenwood [2011] WASC 359
Fast v Rockman [2013] VSC 18
Mahlo v Hehir [2011] QSC 243

Category:

Principal judgment

Parties:

Proceedings 2016/00225246:
Jeannette Weisbord (first plaintiff/cross defendant)
Alexander Weisbord (second plaintiff)
Joel Weisbord (third plaintiff)
Laurence Rodny (first defendant/cross claimant)

 

Proceedings 2015/00324982:
Jeannette Weisbord (plaintiff)
Laurence Rodny (defendant)

 

Proceedings 2015/00324966:
Joel Weisbord (plaintiff)
Laurence Rodny (defendant)

  Proceedings 2015/324977:
Alexander Weisbord (plaintiff)
Laurence Rodny (defendant)

Representation:

Proceedings 2016/225246, 2015/324982, 2015/324966, 2015/324977:

 

Counsel:
V Culkoff (plaintiffs)
L Ellison SC (defendant)

  Solicitors:
Kramer & Kramer (plaintiffs)
Norbert Lipton & Co (defendant)

File Number(s):

2016/225246, 2015/324982, 2015/324966, 2015/324977

Judgment

1. These proceedings concern the estate of the late Mrs Rose Rodny.

2. Mrs Rodny was born in the former Czechoslovakia on 3 July 1922 and died on 24 August 2014 in Sydney, aged 92 years.

3. Mrs Rodny was a survivor of the Holocaust. She arrived in Auschwitz at a young age to be told that her parents had been killed there the day before.

4. Despite the tragedy she experienced, Mrs Rodny migrated to Australia and succeeded in living a prosperous and fruitful life. From the 1960s, until the death of her husband, Karel, in 1989, the couple operated a successful fur manufacturing and retail business. The business closed two years after Karel’s death.

The family

5. Mrs Rodny had two children, a daughter called Jeannette Weisbord who is aged about 66 years, and a son, Laurence Robert Rodny, who is aged about 62 years.

6. Jeannette is married to Abraham (Avi) Weisbord. They have had two sons and two daughters together. The sons are Joel and Alexander aged about 29 and 32 respectively. The daughters, Jordana and Karly, are not parties to the proceedings.

7. I will, for convenience and without meaning any disrespect, refer to members of the family other than Mrs Rodny by their first names.

8. The protagonists in this matter are Jeannette, Joel and Alexander, as plaintiffs and cross defendants on the one side, and Laurence as the defendant and cross claimant on the other.

9. The evidence establishes that each of the plaintiffs has suffered from significant medical and psychological disabilities over their lives. It is neither necessary nor appropriate for the Court to relate these personal matters in detail. It is sufficient for present purposes to describe the plaintiffs’ circumstances in general terms, in-so-far as they have a bearing, in Jeannette’s case, on the manner in which she gave her evidence, and as background to the manner in which Mrs Rodny cared for the plaintiffs during her lifetime.

10. Jeannette gave evidence that she has suffered from depression, anxiety disorder, panic disorder, hypertension, and other physical ailments. These disabilities have necessitated her requiring assistance for almost everything she does.

11. Jeannette claimed that from a very young age she has been physically and emotionally abused by Laurence, who bullied, belittled, teased and ridiculed her, and caused her physical injury when the pair were young. She said that Laurence’s bullying had exacerbated her lack of psychological well-being.

12. Laurence did not contest Jeannette’s claim that she suffered and continues to suffer from substantial medical and psychological disabilities. He conceded that an isolated incident occurred when he injured Jeannette when he was very young, but he challenged the generality and seriousness of Jeannette’s claim that he had acted badly towards her.

13. Joel gave evidence that he has a number of serious medical disabilities that have prevented him from working and that he is a disabled pensioner. He explained the nature of his disabilities in detail, which he has suffered for most of his life. He has found it difficult to get a job, as he cannot stand or sit for prolonged periods of time and suffers mood swings due to his other medical problems.

14. Alex gave evidence that he suffers from a number of specific ailments and that he also experiences serious depression.

15. Laurence broadly accepted that Joel and Alex have suffered from significant medical and psychological disabilities.

16. The evidence establishes that over the course of the plaintiffs’ lifetimes Mrs Rodny provided substantial, if not exceptional, emotional, material and financial support to her daughter’s family out of love, and in apparent recognition of the special needs that they had.

17. Laurence has not put his financial circumstances in issue in these proceedings, and has not put any significant evidence in that regard before the Court. The Court is entitled to infer that Laurence is financially comfortable and may be relatively wealthy.

The estate

18. Through their enterprise, Mrs Rodny and her husband acquired significant assets. The value of Mrs Rodny’s estate for probate purposes was stated to be $9,878,628.91. In addition, Mrs Rodny was entitled to an interest in the residuary estate of her sister-in-law, Sarolta Singer, which at 3 March 2016 had a value of approximately $541,000. As at the date of the hearing in this matter, Laurence, as Mrs Rodny’s executor, valued the estate at approximately $11,116,227.

19. The plaintiffs initially claimed that the estate has a significantly higher value than the amount deposed to by Laurence. By the end of the hearing, the parties had substantially agreed as to the value. Their agreement was embodied in a document that became Exhibit 8. The value was $11,591,775, subject to two reservations of the plaintiffs. One of the reservations was to the effect that, instead of Mrs Rodny’s shares in a company called Karod Investments Pty Ltd (Karod) being worth $1,500,000, as set out in the document, the estate was entitled to $3,000,000, on the ground that the other shares in Karod, also worth $1,500,000, and held by Laurence, were held by Laurence on trust for the estate. The second reservation was that the plaintiffs do not accept that the estate’s interest in the estate of Mrs Singer is now worth $558,366, as set out in the document. The plaintiffs simply say that the interest is more valuable because Laurence has not accounted for all of the assets in Mrs Singer’s estate.

20. It will be convenient to identify the principal properties in Mrs Rodny’s estate that were the subject of specific gifts in the contending wills. As the parties have now agreed the value of the relevant properties, I will set out the values parenthetically when I refer to the properties.

21. Mrs Rodny owned a residential property at 77 Balfour Road, Bellevue Hill (77 Balfour Road), which was Mrs Rodny’s home ($4,000,000). She also owned property at 102 Balfour Road, Bellevue Hill (102 Balfour Road), which comprises four large home units ($5,100,000). Mrs Rodny also owned shares in the company called Karod, which owns real estate at 87 Sproule Street, Lakemba, comprising eight two-bedroom flats on a single title (the value of the underlying property is $3,000,000, so the interest in the estate will either be that sum or $1,500,000, depending upon the resolution of the dispute as to the beneficial ownership of the shares in Karod).

22. Until September 2003, Mrs Rodny owned property at 23 Carramar Avenue, Carramar (Carramar Avenue), which consisted of nine flats on a single title, and which was earning approximately $65,000 per annum in rent as at 2002. According to Laurence, the property was sold for $1.25 million in September 2003.

The contending wills

23. Mrs Rodny made a will on 19 December 1997 (the 1997 will). Probate of that will was granted by this Court to Laurence, the named executor, on 15 January 2016.

24. In about August 2008, Mrs Rodny took steps to make a new will, and although a number of drafts in conventional will form were prepared, it is not known whether or not Mrs Rodny executed any such document, and no executed will in those terms has been found after her death. Although the validity of the documents as wills is strongly in issue, for simplicity I will refer to the final draft document as the 2008 will.

25. I will restrict the analysis of Mrs Rodny’s wills to the gifts made of her real properties and the residuary gifts. It will generally not be necessary to consider the specific legacies or gifts made by Mrs Rodny.

26. Mrs Rodny made a will dated 15 May 1990. She appointed Laurence and Jeannette as her executors. She gave 77 Balfour Road to Jeannette, and 102 Balfour Road to Laurence, both free of any mortgages. She divided the residue between Jeannette and Laurence equally.

27. On 17 June 1997, Mrs Rodny made a further will. Again she appointed Laurence and Jeannette to be her executors. She gave 77 Balfour Road to Jeannette and 102 Balfour Road to Laurence, both free of any mortgages. She gave 87 Sproule Street, Lakemba to Laurence, free of any mortgage. This gift was based upon a misconception, as the company Karod owned this property. Mrs Rodny then gave Carramar Avenue free of any mortgage to be held on trust for such of her grandchildren as survived her. The residue was given equally to Jeannette and to Laurence.

28. The will that was admitted to probate was the 1997 will, made on 19 December 1997. It appointed Laurence as the sole executor. It again gave 77 Balfour Road to Jeannette and 102 Balfour Road to Laurence. The gift of 77 Balfour Road to Jeannette was made free of any mortgage, but the gift of 102 Balfour Road to Laurence was made subject to any mortgage. The shares in Karod were given to Laurence. Carramar Avenue was given to the trustee, free of any mortgage, to be held for Mrs Rodny’s grandchildren, who survived her and attained the age of 25 years. Mrs Rodny gave the residue of her estate to Laurence to assist him to discharge the mortgage over 102 Balfour Road, and taking into account that the property may be subject to a CGT liability that was to be borne by Laurence.

29. All of these wills were prepared on behalf of Mrs Rodny by Mr Norbert Lipton, a solicitor.

30. The draft will that was prepared for Mrs Rodny by Mr John Lloyd, a solicitor, on 15 August 2008 (in its final form), and which I have called for convenience the 2008 will, relevantly provided as follows:

1.   I REVOKE all previous wills and testamentary dispositions.

…

3.   I APPOINT JEANNETTE WEISBORD…and LAURENCE ROBERT RODNEY (sic)… as executor and executrix and trustees…

4.   I GIVE to my Grandchildren ALEXANDER BENJAMIN WEISBORD, JOEL ADAM WEISBORD, KARLY JUDITH WEISBORD and JORDANA TAMMY WEISBORD my property known as 102 Balfour Road, Rose Bay NSW…free of all duties and taxes, in equal shares as tenants-in-common when they shall each attain the age of Eighteen (18) years…

5.   I GIVE to my Daughter JEANNETTE WEISBORD…all my right title and interest in my property at 77 Balfour Road, Rose Bay NSW…free of all duties and taxes PROVIDED THAT if she should predecease me I GIVE the said property at 77 Balfour Road, Rose Bay to my said daughter’s children…

6.   I GIVE all my right title and interest in all my shares in Karold (sic) Investments Pty Ltd to LAURENCE ROBERT RODNEY free of all duties and taxes.

7.   I GIVE all the balance of my estate remaining after the gifts referred to in Clauses 4, 5 and 6 of this my Will to my Trustees…

(b)   to give the balance remaining on the following trusts:

(i)   To my children JEANNETTE WEISBORD and LAURENCE ROBERT RODNY as tenants-in-common equally…

31. The information in the preceding paragraph oversimplifies matters, as Mr Lloyd initially prepared a draft will that was pre-dated 15 August 2008, but omitted the term in clause 6 of the extract set out above. He then prepared a draft of the will that inserted the substance of clause 6 in handwriting. Finally, an engrossed version of the draft will was prepared that included clause 6, but did not include the typed date for the execution of the will.

32. It should be noted that clause 1 provided for the revocation of all previous wills and testamentary dispositions. That will be significant to the extent that it is necessary to deal with the probate claim by applying the principles governing lost wills.

The proceedings

33. There are four sets of proceedings before the Court. In one, No 225246 of 2016 (the probate claim), Jeannette, Joel and Alexander, as plaintiffs, seek a declaration under s 8 of the Succession Act 2006 (NSW) (the Succession Act) that what I have called the 2008 will constitutes the last will and testament of Mrs Rodny. I will explain this claim more fully below. They seek an order that letters of administration with the 2008 will annexed be granted to the plaintiffs. They seek an order revoking the probate granted to Laurence of the 1997 will.

34. The probate claim was commenced by statement of claim filed on 26 July 2016. An amended statement of claim was filed on 22 August 2016 to join Joel and Alexander as plaintiffs, but otherwise it contained the same allegations as the statement of claim.

35. Laurence, by his defence filed in response to the original statement of claim, effectively denies the claims made by the plaintiffs.

36. Further, by cross claim filed on 11 August 2016, Laurence seeks an order for the grant to him of probate in solemn form of the 1997 will.

37. In the three other proceedings, Jeannette (No 324982 of 2015), Joel (No 324966 of 2015), and Alexander (No 324977 of 2015) seek orders against Laurence, as executor of the estate of Mrs Rodny under the 1997 will, for further provision under s 59 of the Succession Act.

38. As the three claims for family provision relief were made outside the 12 months from the date of the death of Mrs Rodny required by s 58(2) of the Succession Act, the plaintiffs will not be entitled to proceed with those claims unless the Court orders that they may do so on sufficient cause being shown.

39. Laurence opposes the plaintiffs being given leave to proceed with their claims out of time, and if they are permitted to proceed, he resists the making of any family provision orders in their favour.

40. It is both logically necessary and practically convenient for the Court to deal with the probate claim before it considers the three applications for family provision orders. In any event, as is made clear in par 257 of the plaintiffs’ closing written submissions, the family provision claims are made in the alternative to the probate claim, so that if that claim succeeds it will not be necessary to deal with the family provision claims.

41. If the probate claim succeeds, the effect will be that Joel and Alex and their two sisters will inherit 102 Balfour Road, which has an agreed value of $5,100,000. Laurence will lose the benefit of the devise of that property to him contained in the 1997 will. Putting aside the effect of any costs orders that may be made in these proceedings, Joel and Alex will become entitled to property worth approximately $1,250,000 each. Jeannette will benefit in that she will share equally with Laurence in the residue.

Section 8 of the Succession Act

42. The determination of the probate claim requires the application of s 8 of the Succession Act, which materially provides:

(1)   This section applies to a document, or part of a document, that:

(a)   purports to state the testamentary intentions of a deceased person, and

(b)   has not been executed in accordance with this Part.

(2)   The document, or part of the document, forms:

(a)   the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will…

(3)   In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a)   any evidence relating to the manner in which the document or part was executed, and

(b)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4)   Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2)…

43. As will be seen, the primary question is whether Mrs Rodny intended the 2008 will to form her will, although that question will be clouded by the difficulty in identifying which particular document may have been the subject of any intention on Mrs Rodny’s part that it operate as her will. It will be necessary in due course to consider the authorities which inform the proper application of s 8. First, it will be appropriate to analyse the evidence in order to identify the issues relevant to the question of whether s 8 has been satisfied in the present case.

The plaintiffs’ pleaded claim

44. It is necessary to note aspects of the relief sought by the plaintiffs and the allegations that they have made in the amended statement of claim to support their entitlement to the relief sought.

45. Prayer 1 is a claim for a declaration “that the undated and unsworn Will prepared by Mr John Lloyd, Solicitor, in or about 2008, constitutes the last will and testament of the deceased”. The prayer does not identify the specific document claimed to be Mrs Rodny’s will.

46. The plaintiffs plead the “unsigned will prepared in August 2008” in par 4(d) of the amended statement of claim, again without identifying the particular document referred to.

47. In par 10 the plaintiffs allege that Mrs Rodny attended the offices of Mr Lloyd in early August 2008 “and gave instructions for the preparation of the Unsigned 2008 Will”.

48. The plaintiffs plead in par 12:

12.   Immediately after attending the offices of Mr Lloyd, the deceased informed the First Plaintiff’s husband, Abraham Weisbord, that she had deliberately gone to another solicitor, Mr Lloyd, and changed her will and requested that Abraham not tell the Defendant.

49. Then, in par 13, the plaintiffs allege that Mr Lloyd forwarded the 2008 will to Mrs Rodny’s home address under cover of a letter dated 15 August 2008, but Mrs Rodny was admitted to hospital from 19 to 22 August 2008 and again on 26 August 2008. They allege in par 14 that Mrs Rodny became weak and unwell and her health and mobility were greatly affected “preventing her from executing the Unsigned 2008 Will”. They then make a number of allegations concerning Mrs Rodny’s poor health, and further in par 15 plead that Laurence “was controlling the deceased’s finances and collecting and perusing all her mail”. They end in par 19 by alleging: “In the premises, the deceased was prevented from executing the Unsigned 2008 Will”.

50. The claim as pleaded by the plaintiffs was therefore in essence that Mrs Rodny instructed Mr Lloyd to prepare the 2008 will with the intention that it expressed her final testamentary intentions, but without changing those intentions she was prevented from formally executing the will because of practical restrictions caused by her declining health and Laurence’s control of her finances and the collection and reading of her mail.

51. A significant issue in this case is whether, if a number of identical versions of a document which the deceased person may have intended to operate as his or her will are shown to have existed, and the evidence does not establish the specific document that was the subject of the deceased’s intention, that circumstance precludes the operation of s 8 of the Succession Act. For the present it must be noted that it follows from the wording of par 13 of the amended statement of claim that the document identified by the plaintiffs is the document “forwarded… to the deceased’s home address under cover of (sic) letter dated 15 August 2008”.

52. It will be seen in due course that the way that the plaintiffs put their case changed in response to evidence of the contents of Mr Lloyd’s file and the other relevant records in his office, and the evidence given by Mr Lloyd when he was called to give evidence by the plaintiffs on subpoena. That evidence unexpectedly supported a conclusion that, contrary to appearances, the draft of the 2008 will was not posted to Mrs Rodny, and consequently a doubt was created concerning the identity of any document that Mrs Rodny intended to operate as her will. Other information, which I will consider below, came to light which changed the basis upon which the parties fought the probate claim.

Mr Lloyd’s evidence

53. It will be convenient in this case to begin by considering the effect of the evidence given by Mr Lloyd, as the solicitor who prepared the 2008 will, and the records he produced, as the resolution of the dispute hinges to a substantial extent on the findings of fact that the Court will make based upon that evidence.

54. Ordinarily, one would expect that, if a person in Mrs Rodny’s position visited a solicitor with the intention to make a new will, then an examination of the solicitor’s file, augmented if necessary by evidence from the solicitor, would clearly demonstrate what had occurred in relation to the implementation of the person’s instructions, whether a new will had been made, and if not, why it had not been made.

55. It is unfortunate in the present case that an examination of Mr Lloyd’s file, and indeed the evidence given by Mr Lloyd, does not resolve these questions, and in a number of ways inhibits the fact-finding process in which the Court is required to engage. A number of deep uncertainties arise out of this part of the evidence.

56. Because of the crucial importance of this part of these reasons for judgment to ensuring that the true testamentary intentions of Mrs Rodny are identified, respected and implemented, I propose to follow an unusually mechanical course in the way that I analyse the evidence. That is because the documentary evidence is incomplete and in important ways even mystifying. Nonetheless, it has the benefit of being objective evidence not dependent upon the recollection of any witness. An analysis of the documentary evidence will therefore provide the best framework available for the purpose of analysing the testimonial evidence.

57. I will then separately consider the oral evidence given by Mr Lloyd. Mr Lloyd was called on subpoena by the plaintiffs to give evidence in their case. He had declined to cooperate with the plaintiffs and to make an affidavit in respect of his evidence. That was because the plaintiffs were not prepared to enter into a deed of release in his favour in the terms required by Mr Lloyd, whereby they would have released whatever rights they had against Mr Lloyd arising out of any conduct on his part in relation to the making of the 2008 will, and indemnified him against claims made by third parties.

58. Notwithstanding my general approach of separating the sequential consideration of the documents produced by Mr Lloyd and his oral evidence, it will assist in an understanding of the documents if I interpolate relevant, uncontroversial explanations given by Mr Lloyd concerning the significance of some of the documents.

59. I note at this point that the transcript for the hearing from 9 October 2017 to 19 October 2017 and the transcript for the hearing from 9 April 2018 to 12 April 2018 each begin at page one. I will refer to transcript references in the 2017 hearing as “T-A” and the 2018 hearing as “T-B”.

Production of additional documents by Mr Lloyd

60. Mr Lloyd gave evidence on two separate days, being 9 October 2017 and 19 October 2017. Mr Lloyd produced some documents on subpoena, and on the first occasion he was questioned about those documents. At the end of Mr Lloyd’s evidence, I was not satisfied that the Court had received sufficient assistance from that evidence to permit it to resolve the probate claim.

61. I encouraged the parties to cooperate in the preparation of a list of documents that the Court would ask Mr Lloyd and his firm to produce, to ensure that all available, relevant documents were put before the Court. I also decided that Mr Lloyd should be recalled to give further evidence, after he had been given the opportunity to respond to the Court’s request that he produce additional documents to the Court. Mr Lloyd cooperated in this process.

62. The list of documents to be produced by Mr Lloyd and his firm, John Lloyd & Co, which I settled, and which was dated 12 October 2017, is set out below. In a letter to the Court dated 18 October 2017, Mr Lloyd explained his response to each of the categories in the list of documents. The documents produced were numbered to correspond with the number of the relevant category. It will assist in understanding Mr Lloyd’s response to the list of documents if I interpolate after the description of each category Mr Lloyd’s response (which will be set out in square brackets):

1.   Complete Lloyd and John Lloyd & Co (Diary) from 1 August 2008 to 30 September 2009 including times of appointments.

[Produced: diary of John Lloyd and John Lloyd & Co diary from 1 August 2008 to 30 September 2009].

2.   Records identifying the person(s) who entered the appointments for Rose Rodny in the Diary.

[Response: no such records exist or have existed].

3.   Records recording the time spent by Mr Lloyd on any matter for Rose Rodny.

[Response: no such records exist].

4.   Records demonstrating when File No 280155 VP was

(a)   opened; and

(b)   closed.

[Produced: screenshot of electronic file 280155 evidencing when the file was opened and closed].

5.   Records demonstrating when File No 260288 VP was

(a)   opened; and

(b)   closed.

[Produced: screenshot of electronic file 260288 evidencing when the file was opened and closed and ‘Documents for: 280155 Rodny-Will’ print run].

6.   All records relating to File No 260288 VP, including but not limited to the search conducted on 21 December 2006 located in File No 280155 VP, relating to DPC 13913, being property at 102 Balfour Road, Rose Bay.

[Response: the only document in file 260288 was the search conducted on 21 December 2006 the only records pertaining to file 260288 are:

(a)   physical file created on 21 December 2006,

(b)   title search 12633-82 conducted on 21 December 2006; and

(c)   screenshot of electronic diary of John Lloyd for the week 18-24 December 2006].

7.   Records relating to the destruction of any documents relating to File No 280155 VP and File No 260288 VP.

[Response: no such records have been produced as to the best of Mr Lloyd’s knowledge and no such documents have been destroyed].

8.   Original of draft or executed:

(a) Appointment of Enduring Guardians (Pursuant to Section 6 of the Guardianship Act 1987 New South Wales) dated 15 August 2008 and signed by Rose Rodny, a copy of which was included in File No 280155 VP, produced to the Supreme Court (Enduring Guardian);

[Response: otherwise than as produced, no other draft or executed appointment of enduring Guardian was held or retained by John Lloyd & Co].

(b)   Power of Attorney referred to as “P.A.” In the file Mr Lloyd, produced to the Supreme Court (PA).

[Response: contained in the electronic file of 280155 is a copy of a General Power of attorney for Mrs Rose Rodny].

9.   Records or register recording original documents retained on behalf of Rose Rodny including but not limited to the Enduring Guardian and PA.

[Response: not produced, a copy of the document register for clients with last names beginning with R produced herewith. No files have been held at any time (see document register)].

10.   Records or register evidencing the posting of the letter dated 15 August 2008 addressed to Mrs R Rodny.

[Response: no such record evidencing the posting of letter 15 August 2008 exists].

11.   Records of any steps taken by Mr Lloyd to complete clause 11 of the draft will of Rose Rodny enclosed with the letter dated 15 August 2008 including without limitation any communication between Mr Lloyd and Mr Peter Rona.

[Response: no such records exist].

12.   Invoices for work undertaken in relation to File No 280155 VP and File No 260288 VP.

[Response: no invoice produced as no invoices were ever raised. There were no items or sums written off. Screenshots of Leap Accounting for matters 260288 and 280155 produced].

13.   Records of any payments received from or on behalf of Rose Rodny, including for File No 280155 VP and File No 260288 VP.

[Response: no such records exist or have existed. There have been no payments received from or on behalf of Rose Rodny].

14.   Records indicating any write-offs for legal services and disbursements, including but not limited to real property searches, undertaken in File No 280155 VP and File No 260288 VP.

[Response: there were no write-offs made on either file. No Invoice was raised in either matter 260288 or 280155 capable of being written off].

63. Mr Lloyd produced documents in response to the list without requiring a further subpoena. The packet of documents containing Mr Lloyd’s response was admitted into evidence as Exhibit J. (I should record that, as the parties caused various of the documents to be marked for identification, and also documents to be separately tendered, it is not clear to me that the integrity of the documents that were originally contained in the packet has been maintained).

64. Mr Lloyd swore an affidavit dated 18 October 2016, which explained his response to the list of documents. The affidavit was included in Exhibit J, and was separately admitted into evidence as Exhibit 3.

65. Mr Lloyd explained his response to the list of documents in the following terms:

8.   I refer to the letter dated 18 October 2017 containing my response to the ‘LLOYD LIST OF DOCUMENTS TO BE PRODUCED BY JOHN LLOYD/JOHN LLOYD & CO’ and to the documents produced. The contents comprising the said response are true and correct to the best of my knowledge, information and belief. The document comprising WILL_OF_ROSE_RODNY_… 14/08/08 (“the entry”) in the file 280155 is a printout of an electronic record, the only other electronic documents are those produced being;

(a)   General Power of Attorney,

(b)   Letter to Client,

(c)   Appointment of Enduring Guardians, and

(d)   File Cover Sheet;

There are no other electronic records dealing with the Rodny matter 280155 other than privileged materials subsequent to Mr Kramer’s initial approach to me about the matter on 3 November 2015.

Mrs Rodny’s envelope

66. I will start by describing a document that was apparently produced by Mrs Rodny herself, before she first saw Mr Lloyd.

67. The plaintiffs tendered an empty envelope addressed to Mrs Rodny with Mr Lipton’s firm’s name and address stamped on the front (Exhibit H). The envelope was apparently found after Mrs Rodny’s death in the place where she placed her important personal papers. The envelope contains on the reverse side to the name and address of Mrs Rodny writing in pencil in Mrs Rodny’s handwriting. The name of Mr Lloyd is written in capitals (misspelt “LOYD”). There is then a reference to a floor level, where the numbers 3 and 4 have been superimposed followed by the word “floor”. The office of John Lloyd & Co was on the third level of the building in which it operated. There are then two attempts to partially write a phone number, which are crossed out. Beside those entries is “2 30”. There is then another entry “LOYD”, followed by the number 93890799. That is the telephone number of John Lloyd & Co. Under that is written “2 30” and under that “Thursday”.

68. It was accepted for the purposes of the hearing that 14 August 2008 was a Thursday.

69. On its face, the writing of Mrs Rodny on the back of the envelope appears to record an appointment by Mrs Rodny to see Mr Lloyd.

70. The existence of this envelope is important. It is some evidence that Mrs Rodny, or someone on her behalf, made an appointment to see Mr Lloyd on 14 August 2008 at 2:30 PM. It also tends to prove that Mrs Rodny retained records relevant to her personal affairs, even an empty envelope with details of an appointment with a solicitor that she made for the purpose of giving instructions to prepare a new will, and also that she had a special place in her home where she kept records of that type.

Mr Lloyd’s electronic file

71. Mr Lloyd’s response to category 5 of the list of documents is of particular importance. File 260288 was the file number for the work done by Mr Lloyd in 2008 in relation to the preparation of a will for Mrs Rodny. The document produced included a printout that contains the following information:

Documents For: 280155 Rodny – Will – One person – Weisbord

Completion/Settlement Date to End of Matter      17/09/10   

General Power of Attorney 2 Clients appointed each other   04/09/08 VJP

Letter to Client  15/08/08 VJP

Appointment of Enduring Guardians            15/08/08 VJP

WILL_OF_ROSE_RODNY_               14/08/08 JLC

File Cover Sheet                  13/08/08 VJP

Instruction Date to Completion/Settlement Date      13/08/08

72. The printout appears to show when the file was opened (13 August 2008) and closed (17 September 2010). It would be natural to infer that the documents that were specifically described in the printout were first created on the dates listed. It would also be natural to infer that when initials were posted beside a particular document, they were the initials of the person primarily responsible for the document. I will return to the issue of the significance of the initials below, as it is necessary to have regard to the evidence given by Mr Lloyd.

73. It is intriguing to note that the name “Weisbord” was included in the description of the file name. I would infer that was done when the file was opened and the initial entry was made in the electronic file. No explanation was given for the inclusion of the reference to “Weisbord”, which must in the circumstances be a reference to Jeannette. The source was probably information provided by Mrs Rodny to Mr Lloyd. Mrs Rodny may have intended some special role for Jeannette. What that may have been cannot be known.

74. Mr Lloyd confirmed in his evidence that these inferences concerning the significance of the entries in the electronic file are correct: see in particular T-A 429. He identified the initials JLC as being a reference to himself, and VJP as being a reference to his secretary, Ms Virginia Portingale (T-A 424.36-428.40). Mr Lloyd said he could not be “100% sure” that the placing of a person’s initials beside a document meant that person was the author of the document, as it could mean that a different person created the document using a computer in the office to which the particular initials were attached (T-A 428.25).

75. The entries in the electronic file, together with Mr Lloyd’s evidence explaining the electronic file, support a conclusion that on 13 August 2008 an appointment was made for Mrs Rodny to see Mr Lloyd the following day, 14 August 2008, for the purpose of giving instructions for the preparation of a will. Enough information was provided at the time the appointment was made to enable Mr Lloyd or his staff to open the file on 13 August 2008. The file cover sheet was probably prepared by Mr Lloyd’s secretary. A draft will was prepared for Mrs Rodny on 14 August 2008. That draft was prepared by Mr Lloyd. An appointment of enduring guardians was prepared on 15 August 2008. A letter to Mrs Rodny was written on 15 August 2008. Finally, a general power of attorney was prepared on 4 September 2008.

Mr Lloyd’s manila file

76. The physical manila folder file for File No 260288 (Exhibit C) is described as: “WILLS SINGLE PERSON”. The typed cover page states Mrs Rodny’s name three times as “Rodney”. On two of those occasions the “e” has been struck through in pen. Underneath the reference to Mrs Rodny is inserted: “(Daughter Jannette (sic) Weisbord Telephone (W) [xxxxxxxx] (Mob) [xxxxxxxxxx]”. Jeannette’s home address is written in pen at the bottom of the cover page. Again, the reference to Jeannette suggests that Mrs Rodny had some special reason for giving Mr Lloyd Jeannette’s details.

Mr Lloyd’s file note

77. Exhibit D, which contains documents extracted from the file, includes a two page file note that one would assume was written primarily by Mr Lloyd, as it contains instructions relevant to the drawing of the new will.

78. No date is written on the file note.

79. The document is headed with Mrs Rodny’s name and address. The writing is in black ink. Next to that, in blue ink, is Mrs Rodny’s telephone number.

80. Under that, in black ink, there is a list of the full names of Mrs Rodny’s children and grandchildren, together with addresses in the case of Laurence and Jeannette. Work and mobile phone numbers are given for Jeannette but not Laurence. Again, Jeannette is given prominence over Laurence.

81. The ages of the four Weisbord children are set out beside their names, and what appear to be incomplete dates of birth for the two daughters.

77. The name “PETER RONA” is then written, and next to that on the left there is an arrow pointing to the right.

78. Then, there is an entry “Re title details” and a reference to units, “77 Balfour Rose”, “102 Balfour Rd owned by Rose Rodney (sic)”, and 287 Sproule St Lakemba Karod Investments P/L – 8 units”.

79. Under the list of Mr Rona’s name and the references to the various properties there is an entry which appears to read “– After” and an arrow to the right followed by “[xxxxxxxx] (11-1 pm)”. It would be at least reasonable to suppose that the purpose of this aspect of the file note was to record the need to telephone Mr Rona for some purpose connected with the properties that had been listed.

80. There is then an entry “P.A.” to the left of the reference to the Lakemba address, in black handwriting that appears to be Mr Lloyd’s. To the left of and immediately below that entry, written in dark blue ink, the following appears:

Son – Daughter

JOINT

– only operates

when no capacity

86. Written to the left of the entry “JOINT” is the word “JUST”, but a lighter blue pen was used to make that entry.

87. In evidence, Mr Lloyd said that the intent of using the word “just” was to record Mrs Rodny’s instructions that the power of attorney was to be just joint, and not joint and several (T-A 47.20).

88. At the bottom of the first page of the file note, written in a different blue pen, and evidently different handwriting, are references to the 102 and 77 Balfour Road properties as well as their certificate of title references.

89. Mr Lloyd said in evidence that the black and dark blue handwriting was his own, and the light blue was the handwriting of his secretary (T-A 20.25).

90. The second page of the file note contains only the names of the grandchildren, written in black ink, followed by the word “Grandchildren”.

91. It is notable that the file note does not appear to contain a note of any instructions given by Mrs Rodny as to what the terms of her new will should be.

92. Mr Lloyd acknowledged in his evidence that he did not make a file note of Mrs Rodny’s instructions concerning the contents of her new will. He initially said that he had made relevant notes of her instructions on the copy of the 1997 will that Mrs Rodny gave him. He ultimately acknowledged that those notes were incomplete, and he effectively prepared the new draft will from memory (T-A 425.33).

Copy of 1997 will and covering letter

93. Mr Lloyd’s 2008 file contains what appears to be an original letter from Norbert Lipton & Co to Mrs Rodny dated 19 December 1997, on the subject of “Your Will”, which said: “We refer to your attendance at our office today and now enclose a copy of the Will dated today’s date signed by you”. That letter appears to have attached to it the copy of the 1997 will provided by Mr Lipton to Mrs Rodny.

94. It is reasonable to infer that the empty envelope upon which Mrs Rodny wrote Mr Lloyd’s details and the day and time for her conference with Mr Lloyd, originally contained Mr Lipton’s letter and the copy of the 1997 will.

95. Mr Lloyd made a number of brief and obscure markings on the copy of the 1997 will, which appear to have been intended to guide him in drafting the new will in accordance with Mrs Rodny’s instructions.

Mr Lloyd’s electronic diary

96. A printout of Mr Lloyd’s electronic diary for the period 11 to 17 August 2008 (Exhibit A) shows an appointment for Mrs Rodny at about 5 PM on Friday, 15 August 2008. Apparently because the entry for the appointment overlaps another entry in the diary, the wording of the appointment concerning Mrs Rodny appears to be truncated. There is no entry for a conference between Mr Lloyd and Mrs Rodny on 14 August 2008.

97. Mr Lloyd said in his evidence that his electronic diary was inexplicably incorrect in so far as it suggested that his meeting with Mrs Rodny was made for 5 PM. He said that to his recollection, the conference with Mrs Rodny was after lunch, although it may have been before (T-A 449.29). This aspect of Mr Lloyd’s evidence appears to be correct, as the electronic diary shows many other appointments that are not relevant to these proceedings as having been fixed during the middle of the night. The times for the entries in Mr Lloyd’s electronic diary are incorrect for some unknown reason.

98. The diary entry that overlaps the entry for the appointment with Mrs Rodny states: “ring Peter Rona”. That gentleman was Mrs Rodny’s accountant. As will be seen, Mr Lloyd needed to ring Mr Rona in order to obtain information to complete clause 11 of the final draft of the will that was prepared for Mrs Rodny. There is no evidence that Mr Lloyd did ring Mr Rona. The significance of this entry for present purposes is that the entry relating to contacting Mr Rona must have been made before Mrs Rodny actually saw Mr Lloyd on 15 August 2018. It is a reasonable supposition that the two entries were made at the same time, with the intent that Mr Lloyd would ring Mr Rona shortly before Mrs Rodny arrived on 15 August 2008 for her meeting with him. Relevantly, Mr Lloyd must have had some discussion with Mrs Rodny before he met her on 15 August 2018 that was sufficiently detailed to get to the point where Mr Lloyd understood that he should ring Mrs Rodny’s accountant for some purpose connected with the making of her will.

99. If, as strongly appears to be the case, Mr Lloyd saw Mrs Rodny on 14 August 2008 as well as 15 August 2008, the fact that the electronic diary does not record the former conference means that the diary is unreliable as a complete record of appointments for Mr Lloyd to see Mrs Rodny.

Mrs Rodny’s draft will

100. The file contains a draft will of Mrs Rodny. The word “DRAFT” is stamped on the document in red. It is already dated in the sense that the words: “Dated: 15th August 2008” are typed on the first page. The same date is typed on the third page next to the space provided for Mrs Rodny’s signature.

101. The names of the two witnesses have also been typed into the document. One witness was Mr Lloyd. The other was Vanessa Lopez Souza, whose occupation is described as “law clerk”, and whose address is the same as that of Mr Lloyd.

102. The wording of the draft will is in the same terms as the August 2008 will proposed by the plaintiffs in this case, except that clause 6 dealing with the gift of the shares in Karod to Laurence has been omitted.

103. The draft will has been amended in dark blue handwriting (that looks like the same pen as was used to make the entry on the first page of the file note concerning the power of attorney), to add:

6.   Give all the right title and interest in all my shares in Karod Investments Pty Ltd to LAURENCE ROBERT RODNEY (sic)”.

104. Furthermore, the typed clause 10 provides:

10.   My Trustees must pay any capital gains tax for which my estate is liable or becomes liable as follows:

105. Clause 10 therefore appears to be incomplete, in the sense that it appears that something was intended to be added concerning the payment of capital gains tax. That said the incomplete clause 10 seems clearly enough to require the Trustees to pay the capital gains tax. (Note that clause 10 in this draft became clause 11 in the final draft when Mr Lloyd inserted clause 6 which he had omitted).

106. It is to be noted that on the draft will there is a vertical line beside and a horizontal line under clause 10, which appears to have been written in black ink.

107. If, as appears to be the case, the entry in the electronic file dealing with when documents were first prepared means that the draft will was prepared on 14 August 2008, it must follow that Mr Lloyd received instructions for the will from Mrs Rodny on or before that date. Also, the fact that the date of execution and the names of the witnesses were typed into the draft at the beginning suggests that there was an arrangement between Mr Lloyd and Mrs Rodny for her to attend upon him on 15 August 2008 in order to sign the will.

108. It seems likely that the effect of clause 10 not being completed (having regard to what was written in the hand-written file note) was that Mr Lloyd needed to talk to Mr Rona in order to find out some information needed for the purpose of completing the clause.

109. The existence of the hand-written addition of the new clause 6 would suggest that either a gift that Mrs Rodny instructed Mr Lloyd to include in her will had been omitted by him when he prepared the draft, or alternatively when Mrs Rodny reviewed the draft she decided to revise it to add an additional gift. (It will be remembered that Mr Lloyd did not make any note in his file note of Mrs Rodny’s instructions concerning the terms she intended to include in her new will, which may have caused Mr Lloyd to forget his instructions and fail to include the term that became clause 6 in the draft of the will that was evidently intended to be executed on 15 August 2008).

Appointment of enduring guardians

110. Mr Lloyd’s file contains an “appointment of enduring guardians (pursuant to section 6 of the Guardianship Act 1987 (New South Wales)”. The parties are Mrs Rodny, as appointor, and Jeannette and Laurence, as enduring guardians. It also has the typed date, 15 August 2008, as did the original draft will. The document has been signed by Mrs Rodny at the foot of each page and in the place for signature. Deletions have been initialled by Mrs Rodny. The document has not been signed by Jeannette and Laurence for the purpose of accepting their appointment. Mr Lloyd has not signed the certificate of witness. This document was prepared on 15 August 2008.

111. Mr Lloyd said in his evidence that although the issue is not clear, he thought that the document in his file was an original (T-A 442.37). Mr Lloyd could not remember the document being prepared (T-A 48.38).

112. It appears from the fact that the appointment of enduring guardians was executed by Mrs Rodny that she met with Mr Lloyd on 15 August 2008, and at the least signed one of the documents that she had instructed Mr Lloyd to prepare.

Letter dated 15 August 2008

113. Mr Lloyd’s file contained what appears to be a copy of a letter addressed to Mrs Rodny, dated 15 August 2008, on the subject: “YOUR WILL” (part of Exhibit D). (As this letter appears above the entry for the appointment of enduring guardians in the electronic file, it is to be inferred that it was prepared after that document).

114. The letter states:

We enclose herewith draft Will which we have prepared pursuant to instructions received from you.

Please peruse the Will and advise whether the contents meet with your approval.

115. The document bears a stamp in red: “FILE COPY”. It does not have any reference to a file number, or indication of who the actual writer was. However, as Mr Lloyd’s secretary’s initials appear beside the reference to “Letter to Client” in Mr Lloyd’s electronic file, that would suggest that the secretary prepared the letter.

116. In relation to the absence of any reference to a file number on the letter, Mr Lloyd said in evidence that it was his secretary’s invariable practice to insert a file reference on correspondence. He suggested that the absence of a file reference on the letter may mean that it was produced by Ms Souza (T-A 431.35). This evidence introduces doubt about which of Mr Lloyd’s employees was involved in preparing the 15 August 2008 letter to Mrs Rodny, and which of those employees was responsible for sending the letter to her.

117. It is significant that, if this letter was sent to and received by Mrs Rodny, it has apparently not been found. If Mrs Rodny received the letter she did not put it and the draft will in the special place where she kept her personal documents, and where the envelope that originally contained the letter from Mr Lipton and the copy of the 1997 will was found. In this event, Mrs Rodny would have kept an empty envelope that recorded her initial appointment with Mr Lloyd, but not the correspondence she received from him. It is also possible that the letter and its contents were kept by Mrs Rodny in that special place where she kept her personal documents, but were removed at some time. Furthermore, apart from the unexplained circumstances in which an appointment was placed in Mr Lloyd’s electronic diary for him to see Mrs Rodny on 3 September 2008, there is no evidence of Mrs Rodny responding in any way to the receipt of the letter.

Mrs Rodny’s further draft will

118. Included in the documents attached together by a file spike that constitute Exhibit D (which may have been the enclosure referred to in the file copy of the 15 August 2008 letter) was a typed version of the draft will that Mr Lloyd prepared for Mrs Rodny, as the originally omitted gift to Laurence of all of the shares in Karold (sic) Investments Pty Ltd has been typed in the document as clause 6.

119. It is interesting to note, that if the final typed version was sent to Mrs Rodny, it continued to have the incomplete clause 11, in that nothing is added after the words “as follows:”. It would have been a significant lapse for Mr Lloyd to have sent an incomplete draft will to Mrs Rodny for the purpose of requesting her instructions as to whether the draft accorded with her intentions.

120. The date has been removed from the original version of the draft will. On the front page in the space provided for the date it states: “Dated: 2008” (to make provision for the insertion of the day and the month at the time of execution of the document). The same provision for the date is made near where the will was to be signed. Mr Lloyd’s and Ms Souza’s names were still typed in as the proposed witnesses.

121. This draft will is apparently the final version that was produced, and it is the document that the plaintiffs contend is the document to which s 8 of the Succession Act should be applied.

Mr Lloyd’s correspondence register

122. An extract of the correspondence register for John Lloyd & Co for the period 1 August 2008 to 30 October 2008 was in evidence (Exhibit L). It does not record any letter being sent to Mrs Rodny on 15 August 2008, or any later date. It may be observed of the exhibit that it looks like it was intended to have effect as a simple but comprehensive register of all correspondence by post sent out by the firm.

123. The correspondence register was only produced to the Court by Mr Lloyd with the second tranche of documents. Category 10 was included in the list of further documents to be produced, because I became perplexed during the course of Mr Lloyd’s initial evidence by the absence of any objective evidence that Mrs Rodny responded specifically to the express request in the 15 August 2008 letter that she advise Mr Lloyd whether she approved of the draft will.

124. Mr Lloyd said in his evidence that he had “a very imperfect system of postings” (T-A 430.40). All that he could say was that his arrangements for recording the fact that correspondence had been sent from his office had “become just an unreliable system”. He accepted that there was no record of the 15 August 2008 letter being posted to Mrs Rodny.

125. While Mr Lloyd’s correspondence register does not appear to be a sophisticated record, it does list correspondence sent out on stated dates, and there is nothing on its face that suggests that it is incomplete or was not completed methodically by Mr Lloyd and his staff. Mr Lloyd said nothing about the record being maintained haphazardly until he was asked about the significance of the register not recording that the 15 August 2008 letter had been sent out.

3 September 2008 appointment with Mrs Rodny

126. Mr Lloyd obtained an ASIC search for Karod on 2 September 2008.

127. Mr Lloyd’s electronic diary for the period 1 to 7 September 2008 (Exhibit B) has an entry, apparently at 7 PM on Wednesday 3 September 2008: “APPT MRS ROSE RODNY”.

128. Mr Lloyd claimed in his evidence that an appointment for Mrs Rodny to see him on 3 September 2008 was not made on 15 August 2008, but on some day between the two dates (T-A 52.9). He also said that he could not recall whether he saw Mrs Rodny on 3 September 2008 or not (T-A 454.28).

Draft general power of attorney

129. Mr Lloyd’s electronic file recording the dates when particular documents were prepared shows that a draft general power of attorney was prepared on 4 September 2009, that is, one day after the date of the appointment for Mrs Rodny in Mr Lloyd’s electronic diary. The document described Mrs Rodny as the principal and Laurence as the attorney. It is not executed by either party.

130. The copy of the draft power of attorney produced to the Court did not come from Mr Lloyd’s file. Mr Lloyd could not explain that fact (T-A 445.17). When he noticed from the electronic file that the document had been created, he caused it to be printed out from his firm’s electronic records (T-A 453.5). Mr Lloyd had no explanation as to why he prepared a draft power of attorney on 4 September 2008 (T-A 448.21).

131. It appears that something happened to make Mr Lloyd recall that he had omitted to prepare a draft power of attorney for Mrs Rodny in accordance with the instructions that he appears to have recorded in his hand-written file note. There is no positive evidence as to whether Mr Lloyd spontaneously recalled his omission, or whether something happened in a discussion with Mrs Rodny that triggered Mr Lloyd’s recollection that he needed to prepare a draft power of attorney. There is no record that anything was done to follow up the execution of the document, although objectively Mr Lloyd must have had reason to believe on 4 September 2008 that Mrs Rodny still wanted to execute a power of attorney.

Mr Lloyd’s 2006 file

132. It is finally necessary in relation to the documents produced to the Court by Mr Lloyd to refer to an entirely mysterious situation. Mr Lloyd produced an empty Manila file folder for File No: 260288. The client was described as “Ruby Rodney”, but the phone number recorded was Mrs Rodny’s phone number. The file was described as: “RODNEY – WILLS/POWER OF ATTORNEY”. The file was created on 21 December 2006. The only document surviving from it was a land titles search for Auto Consol 12633-82 dated 21 December 2006, which had been placed in Mr Lloyd’s 2008 file. The search related to 102 Balfour Road.

133. In his evidence, Mr Lloyd could provide no explanation at all about the significance of this file (T-A 44.42), and could not explain how the 2006 search found its way into the 2008 file (T-A 452.18). Mr Lloyd acknowledged that, as he generated an appointment in his diary for Mrs Rodny, Mrs Rodny must have seen him in 2006 to prepare a will (T-A 446.34).

134. The existence of the 2006 file shows that in December 2006 Mrs Rodny made contact with Mr Lloyd and provided him with at least sufficient information to cause him to open a new file relevant to the preparation of a will for Mrs Rodny. The fact that nothing was found in the file, and the only document that could have been prepared at the time was a land titles search for one of the properties suggests that Mrs Rodny did not actually provide instructions for a new will to Mr Lloyd.

Mr Lloyd’s oral evidence

135. I will now move to address the oral evidence that Mr Lloyd gave concerning his involvement with Mrs Rodny in about August 2008. Mr Lloyd said that he had reviewed his file before coming to give evidence (T-A 18.18).

136. Mr Lloyd said that, when he saw Mrs Rodny, her instructions were clear (27.18). He was satisfied that Mrs Rodny had capacity to make a will (T-A 50.35).

137. Mr Lloyd said that he saw Mrs Rodny with Mrs Parker, who was a close friend. It appeared to him that Mrs Parker already knew what Mrs Rodny’s instructions to him would be. Mrs Parker did not interfere in the giving of the instructions. Mrs Rodny said to Mr Lloyd that she wanted Mrs Parker to remain present. Mr Lloyd said that he prepared his written file note on the day that he saw Mrs Rodny (T-A 18.37).

138. Mr Lloyd gave evidence that Mrs Rodny said to him: “I want to change my will… My son’s got enough and one of the properties have been sold and I want to give it to my grandchildren” (T-A 19.5). Mr Lloyd repeated his evidence that Mrs Rodny told him that Laurence already had enough (T-A 34.16, 439.15). He also repeated his evidence that Mrs Rodny instructed him that she wanted to substitute another property by way of gift to her grandchildren for the property given to them by the earlier will that had been sold (T-A 29.12, 439.23). Mr Lloyd also said that Mrs Rodny told him that she did not want Mr Lipton to know about the new will, and Mr Lloyd accepted the suggestion of counsel that this instruction was probably because of the association between Mr Lipton and Laurence, so Mrs Rodny probably did not want the information to come to the attention of Laurence (T-A 45.20).

537. The proceedings may be relisted for further argument by arrangement with my associate, if it is necessary for the Court to resolve any further differences between the parties.

538. Given the nature of the facts that I have been required to set out and consider in these reasons, I will give the parties seven days to make suggestions to my associate as to how the Court’s Identity theft prevention and anonymisation policy should be applied to these reasons for judgment.

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Amendments

14 December 2023 - Correction to spelling of defendants name in title

Decision last updated: 14 December 2023