Citation: Pozniak Estate: Morgan v Reuben [2005] NSWSC 766
Court: Supreme Court of New South Wales, Equity Division (Probate List)
Date: 1 August 2005
Judge(s): Palmer J
Background
The deceased, Mrs Toni Pozniak, died in May 2003 leaving an estate worth approximately $2.8 million. Her son (the plaintiff) and her son-in-law (the defendant) each sought to administer her estate under competing testamentary documents.
Three documents were in issue. A 1995 will appointed the son-in-law as executor and made substantial gifts to him and his family. A 1996 will, by contrast, made no bequest to the son-in-law and appointed a different solicitor as executor. A 1997 codicil purported to vary and then confirm the 1995 will, which, if valid, would have had the effect of reviving it and revoking the 1996 will.
The son alleged that Mrs Pozniak's signatures on both the 1995 will and the 1997 codicil were forgeries. The attesting witnesses to both documents were the same solicitor, Mr Ryner, and his wife. Both Mr and Mrs Ryner maintained under oath that they had personally witnessed Mrs Pozniak sign each document.
Legal Issues
- Whether the signatures attributed to Mrs Pozniak on the 1995 will and 1997 codicil were genuine or forged.
- Whether the attesting witnesses, a solicitor and his wife, had falsely attested to those signatures.
- Which testamentary document governed the administration of Mrs Pozniak's estate.
Decision
The central question was one of fact resolved primarily through expert handwriting evidence. Mr Paul Westwood, a highly experienced document examiner retained by the plaintiff, compared the disputed signatures against a series of undisputed genuine signatures spanning from 1985 to 1997. He found no evidence that the disputed signatures were made by the same person who made the genuine specimens, and expressed his opinion in the strongest terms available to an expert.
The differences were visible even without expert assistance. The genuine signatures, including one made the day after the codicil was allegedly signed, were fluid and confident. The disputed signatures were hesitant and shaky, with multiple pen stops, ink bleeds, and interruptions in fluency that were, in Mr Westwood's assessment, consistent with a person slowly and carefully copying a signature rather than writing their own.
Palmer J accepted Mr Westwood's evidence without qualification and rejected the testimony of Mr and Mrs Ryner. His Honour found that Mrs Ryner's own purported attestation signatures were also forged, and declined to accept Mr Ryner as a witness of any credit. The court reached those findings consciously applying the elevated standard of proof appropriate to allegations of fraud and perjury against named individuals.
As a consequence, both the 1997 codicil and, separately, the 1995 will were found to be invalid. The 1996 will, which was unchallenged, stood as Mrs Pozniak's last valid testamentary instrument, and administration of the estate was granted to the son.
Orders Made
- Administration of Mrs Pozniak's estate, with the 1996 will annexed, to be granted to the plaintiff in solemn form, subject to compliance with the Rules of Court.
- The administration bond dispensed with.
- The matter remitted to the Registrar to complete the grant.
- A copy of the judgment to be forwarded to the Law Society of New South Wales given the findings bearing on the solicitor's fitness to practise.
- Exhibits (other than the 1996 will) to be retained by the Court until further order.
Key Takeaways
- Expert handwriting evidence, when sufficiently compelling, can displace the sworn testimony of attesting witnesses, even where the consequence is a finding of fraud and perjury against a solicitor.
- A forged codicil that purports to confirm an earlier will cannot revive that earlier will or revoke an intervening valid will: the 1996 will remained operative once the 1997 codicil was found to be a nullity.
- Where a probate dispute turns on forgery allegations, the court will apply an elevated standard of proof proportionate to the gravity of the findings, including findings that attesting witnesses participated in the fraud.
- Sufficient evidence of forgery can rest on structural and dynamic features of handwriting, such as pen stops, ink bleeds, letter formation differences, and fluency, assessed against contemporaneous genuine specimens.
- Findings in a probate judgment that bear on a solicitor's fitness to practise may be referred to the Law Society by the court of its own motion.
Legislation and Cases Referenced
Legislation:
- Conveyancing Act 1919 (NSW), s 163F
Cases cited: No cases were cited in the portions of the judgment available for review.