The Estate of Irene Elizabeth Dampf (in the Will called Irene Dampf) late of North Narrabeen v Richard Dampf & Anor [2010] NSWSC 619 (8 June 2010)

Last Updated: 16 June 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
The Estate of Irene Elizabeth Dampf (in the Will called Irene Dampf) late of North Narrabeen v Richard Dampf & Anor [2010] NSWSC 619


JURISDICTION:
Probate Division

FILE NUMBER(S):
2008/292168

HEARING DATE(S):
8/6/2010


EX TEMPORE DATE:
8 June 2010

PARTIES:
Mr Stephen Dampf (Plaintiff)
Mr Richard Dampf (First Defendant)
Mr Robert Dampf (Second Defendant)

JUDGMENT OF:
Einstein J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr M Willmott SC, Ms E Elbourne (Plaintiff)
Ms E Cohen (Defendants)

SOLICITORS:
Michael C Smith Solicitor (Plaintiff)
Robinson Lawyers (Defendants)


CATCHWORDS:
Probate
Sole issue concerns due execution of Will by testator
Presumption of regularity

LEGISLATION CITED:
Evidence Act 1995
Felons (Civil Proceedings) Act 1981
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:
Azzopardi v Smart (1992) 27 NSWLR 232
Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51
Burnside v Mulgrew; Estate of Doris Grabrovaz [2007] NSWSC 550
Harris v Knight (1890) 15 PD 170
Hartley v Fuld; In the Estate of Fuld, dec’d [1965] P 405
Hay v Simpson (1890) 11 LR (NSW) Eq 109
Hughes v Public Trustee (Court of Appeal, Hutley JA, Hope JA and Glass JA, 19 August 1980, unreported)
Jones v Jones (1908) 24 TLR 839
Kimbell, In the Will of [1961] 1 NSWR 414
Nicholas v Penn [2004] WASC 227
Oakes v Uzzell [1932] P19
O'Driscoll, In the Will of (1929) 29 SR (NSW) 559; 46 WN (NSW) 176
Re Vere Wardale v Johnson [1949] P 395
Sullivan v Mouglalis; Estate of Wyma [2008] NSWSC 1326
Theakston, In the Estate of (1956) 74 WN (NSW) 113
Unsworth (dec’d), In re; McLeod v Burchall (1974) 8 SASR 312

TEXTS CITED:


DECISION:
Order that subject to compliance with the rules of court, probate of the will of the deceased be granted to the plaintiff in solemn form



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
PROBATE DIVISION


Einstein J

Tuesday 8 June 2010 ex tempore
Revised 9 June 2010

2008/292168 The Esate of Irene Elizabeth Dampf (in the Will called Irene Dampf) late of North Narrabeen v Richard Dampf & Anor

JUDGMENT

The proceedings

1 The sole issue in the proceedings is whether on 22 June 1999 the late Irene Elizabeth Dampf (“the deceased”) who died on 15 September 2006 signed her last Will bearing the date 22 June 1998 (“the Will”) in the presence of Hanz Czajkowski (also known as Hans Johannes Czajkowski and/or Johannes Czajkowski) and Christina Dixon (also known as Tina Dixon and/or Christina Czajkowski and/or Tina Czajkowski) who were present at the same time and who attested and signed the same in the presence of the deceased.

2 On 26 January 2008, the plaintiff, Stephen Dampf, who [following the renunciation of probate by Mr Alexander Mijovich] is the sole executor appointed under the Will, filed a Summons and supporting affidavits both sworn 26 January 2008 seeking a grant of probate of the Will in common form.

3 No such grant was made by reason that on 6 February 2008, the Principal Registrar issued a Requisition notifying the plaintiff that on 7 December 2007 a caveat had been filed in the Registry. That caveat (No. 121372/07) had been filed on behalf of the first defendant, Richard Dampf, requiring proof of the Will in solemn form.

4 On 11 August 2009, in accordance with directions made by the Registrar on 27 July 2009, the plaintiff filed the Statement of Claim in the present proceedings in which he is seeking a grant of the Will in solemn form.

5 The only issue taken by the defendants is as to whether the deceased had attested and signed the Will in the presence of Hans Czajkowski and Christina Dixon who were present at the same time.

6 On 30 June 2008 the Registrar noted that the defendants were no longer maintaining their allegation that the deceased lacked the requisite testamentary capacity at the time she executed the Will, and it was further noted by Nicholas J on 24 February 2010 that the only live issue between the parties was that of due execution (see Judgment dated 24 February 2010 at [6], no. 2010/39095). Indeed, having filed a Caveat requiring the Will to be proved in solemn form pursuant to SCR Pt 78 r 62, the caveators are only entitled to cross-examine the attesting witnesses – see Azzopardi v Smart (1992) 27 NSWLR 232 at 236-238.

7 By Summons filed 12 February 2010, the plaintiff sought leave under s.4 of the Felons (Civil Proceedings) Act 1981 to continue the application made by him for a grant of probate in solemn form of the deceased’s Will. This application was listed by Nicholas J on 24 February 2010 and he, on that date, ordered that leave be granted to the plaintiff nunc pro tunc to commence and continue the probate proceedings – see Application of Stephen Dampf 2010/39095 (unreported).

8 In Azzopardi v Smart (1992) 27 NSWLR 232 at 236 - 238 Powell J had occasion to examine the authorities and observed as follows:

The authority referred to in both Hastings and Weir (ibid) and Ritchie (ibid) is Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51. In that case, after counsel for the plaintiff had called, and examined, the attesting witnesses, counsel for the defendant announced that he proposed to cross-examine the attesting witnesses as to the deceased's testamentary capacity, a course to which counsel for the plaintiff objected. In ruling on that objection, Walker J said (at 168; 52):

“There is a dearth of authority on the practice as to cross-examination on proof of a Will in solemn form. In the absence of authority, I must look at the matter on principle, and in the light of what I believe to be the practice of this Court.

The conclusion I have come to is that the cross-examination must be confined to the mere question of execution. There are strong reasons in favour of this practice. In the first place, proof in solemn form may be demanded many years after the death of the testator and the proof in ordinary form. If it is then open by cross-examination of an attesting witness to raise a colour of incapacity on the part of the testator, the persons propounding the Will must labour under a great disadvantage, because the witnesses who could have proved the testator's capacity may then be dead.

Again, if by cross-examination of the attesting witnesses a case is made out that the testator was incapable or unduly influenced, it cannot be contended that the matter should be decided only on the evidence of the witnesses called to prove the Will in solemn form; the plaintiffs would be entitled to call witnesses to rebut the case so raised, and the parties would at once be launched in a suit to determine the question of incapacity or undue influence.

Again, both parties have a right to the costs of proving a Will in solemn form out of the estate; if other questions were allowed to be raised on such an application, the parties would be enabled to litigate those questions without the risk of themselves having to pay costs.

The caveator should, if he so desired, have taken the course of fighting the question of incapacity at his own risk as to costs; he cannot now be allowed to raise the question.”

Later, when dealing with the question of costs, his Honour said (at 169;52):

“It may be that the practice laid down by the rules creates a little difficulty, and that, even where a person merely wants proof in solemn form, it is necessary to lodge a caveat; but in such case the caveator should give notice to that effect in or together with his caveat. The absence of such notice leads the executors into expense which is quite unnecessary; they obtain a rule nisi, affidavits are filed by both sides, there is a motion for a rule absolute, and, if a prima facie case is made out, the matter is ordered to proceed as a contested cause, and then a statement of claim is filed. Not till then does the caveator show his hand. Such a practice cannot be allowed, because all the costs up to that point would have been incurred unnecessarily through the caveator not having taken steps to inform the executors that he only wanted proof in solemn form. The caveator is, therefore, entitled, out of the estate, to his costs as of an application to prove the second codicil in solemn form; but he must pay all further costs incurred by the executors by reason of the filing of the caveat.”

Although, in the first of his judgments in Beatson v Perry, Walker J referred to the “dearth of authority” on the question, it should be noted that, in the course of the judgment delivered by him in Hay v Simpson (1890) 11 LR (NSW) Eq 109 at 114-115), Manning J said:

“... In this case it is true the opponent of the Will can claim more latitude, for he is one of the next of kin, and the next of kin have a right to have the Will proved in solemn form, that is, per testes and in open Court, though I think that even next of kin must shew some small justification for doing so — for instance, they may use their right by unreasonable delay. However, there is no doubt that as a general rule they may claim to have the Will proved in solemn form at the cost of the estate, but they must go no further than that; they must not put the estate to additional expense, they cannot fire off two barrels at once, and, because there was only one report, say that there was only one barrel— they must in fact say, and clearly say, that proof in solemn form is all they require, notwithstanding the fact that there is here no rule of Court to compel them to do so, and they must not file an ambiguous plea, keep to themselves what they really intend, and then, when all hope of succeeding on the other issues has failed, say that all they wanted was a proof in solemn form. In cases of this kind the general practice is that the plaintiffs prove the Will, and perhaps give evidence as to the circumstances attending the preparation of the Will as well as its execution, leaving the respondents to go into their case and turn back upon the plaintiffs the onus of proving the soundness of the testator's mind; but there is nothing whatever to compel the plaintiffs to take that course, and it is clear that counsel for the plaintiffs would never take the course of going fully and elaborately into evidence of a testator's capacity if they were merely called upon to give roof in solemn form.”

Finally, I record that, in the course of his judgment in Hughes v Public Trustee (Court of Appeal, 19 August 1980, unreported) Hutley JA (with whom Hope JA and Glass JA agreed) said:

“The caveat also required that the Will be proved in solemn form. That, according to my understanding of the practice in New South Wales until the Supreme Court Act 1970, came into force, only entitled him to cross-examine the attesting witness. I know of no change brought about in this practice by the Supreme Court Act or the rules, and counsel were prepared to concede this.”

As is apparent from the second of the judgments delivered by Walker J in Beatson v Perry, if one seeks to raise a ground of invalidity other than want of due execution, one is required to file, not, a caveat requiring only proof in solemn form, but, a general caveat, and, further, one is required, on the return of a summons for an order that the caveat cease to be in force, to be in a position then to tender evidence raising at least a prima facie case of the ground of invalidity relied upon, in default of which the order will be made, with costs against the caveator: see In the Will of O'Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176.

9 I do not understand these expressions of principle have been overruled since that point in time

10 It is also pertinent to refer to UCPR, Part 78 Rule 15 which is in the following terms:

Will not sufficiently attested

(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a Will which does not contain a sufficient attestation clause or contains no attestation clause.

(2) The plaintiff shall file an affidavit in the form prescribed by one or more of the attesting witnesses as to due execution of the Will.

(3) Where the plaintiff is unable to comply with subrule (2) he shall file an affidavit explaining the reason for the inability and an affidavit by some person, other than an attesting witness, who was present when the Will was executed.

(4) Where the plaintiff is unable to comply with subrule (2) or with subrule (3), he shall furnish evidence, on affidavit, of the reason for the inability and of the identity of the signature of the testator and of the attesting witnesses respectively or of any other facts from which it may be inferred that the Will was duly executed.

The background facts

11 The plaintiff’s solicitor, Mr Michael Smith, in his affidavit sworn 27 January 2010 at paragraph 9 gives evidence of a telephone conversation with Christina Dixon which occurred on 31 August 2009. During that conversation, Mr Smith deposes that she said:

“I was not present when the Will was written out. I just witnessed Mrs Dampf sign it in conjunction with my husband Hans and Stephen Dampf senior.”

12 Mr Smith, thereafter, exchanged a series of emails with Ms Dixon (Annexures “B” to “K” inclusive). In one dated Thursday 15 October 2009 at 11.07 am sent under the name Tina Czajkowski (Annexure H), Ms Dixon responded to 8 questions posed by Mr Smith in an email he had sent to her on 16 September 2009 as follows:

Point 1: The signatures that appear on the document are those of Hans Czajkowski and Christina Dixon.

Point 2: Mrs. Irene Dampf; the mother of Richard and Stephen Dampf and former wife of Robert Dampf was known to me. At the time of the signing of Mrs. Dampf’s Will I had known Mrs. Dampf for approximately 10 years.

Point 3: At the time of Mrs. Dampf signing her Will my husband, Hans Czajkowski and myself, Christina Dixon were in the presence of Mrs. Dampf.

Point 4: I can attest that my husband and I were in the presence of Mrs. Dampf at the signing of her Will.

Point 5: I can attest that Stephen Dampf (Snr) was in the presence of Mrs. Dampf, my husband – Hans Czajkowski and myself – Christina Dixon at the signing of Mrs. Dampf’s Will.

Point 6: I did not use my married name until some years after my marriage to Hans Czajkowski.

Point 7: I have no recollection of any discussions/conversations regarding the dating of the Will.

Point 8: I have no recollection of the facts and/or circumstances regarding the preparation of Mrs. Dampf’s Will...

13 Notwithstanding Mr Smith’s attempts, Ms. Dixon has neglected or refused to swear an affidavit as attesting witness (see Annexures K to Z inclusive of that affidavit). On 31 March 2010 Ms Dixon was served with a subpoena ad testificandum to attend the hearing set down on 8 June 2010 and to give evidence.

14 The plaintiff’s solicitor, Mr Michael Smith, in his affidavit sworn 29 January 2010 deposes to a conversation with Hans Czajkowski which occurred on 27 April 2007. During that conversation, Mr Smith deposes that he showed Mr Czajkowski a copy of the deceased’s Will and the following conversation ensued (at paragraph 4):

“Mr Smith: Is that your signature on the document?

Mr Czajkowksi: Yes. That’s correct.

Mr Smith: Is the signature “C. Dixon” on the document that of Christina Dixon?

Mr Czajkowksi: Yes. That’s correct.

Mr Smith: Is it not the case that Mrs Dampf signed this document as her Will in your presence and in the presence of Christina Dixon and then you and Ms Dixon signed the documents as witnesses?

Mr Czajkowski: I cannot recall what happened when the document was signed. I didn’t know what I was witnessing. I’m not going to swear any affidavit for you. I’ll be getting out of jail later in the year and I will speak to someone about the matter then”.

15 Mr Smith made subsequent attempts to locate Mr Czajkowski and his attempts in this regard are set out in his affidavit sworn 29 January 2010 at paragraphs 5 - 7 inclusive, 15 - 24 inclusive and 28.

16 Notwithstanding Mr Smith’s attempts, Mr Czajkowski has neglected or refused to swear an affidavit as attesting witness. On 31 March 2010 Mr Czajkowski was served with a subpoena ad testificandum to attend the hearing set down on 8 June 2010 and to give evidence.

17 In his affidavit sworn 6 June 2009, the plaintiff set out the circumstances whereby his mother executed her Will and at paragraph 14 deposed as to the attestation of that Will by Hans Czajkowski and Tina Dixon.

18 In his affidavit (26 January 2008) the plaintiff stated inter alia as follows:

3. The document, dated 22 June, 1998, and signed in the margin by me and by the person before whom this affidavit is sworn is, I believe, the last Will of Irene Elizabeth Dampf late of 11 Narrabeen Park Parade, North Narrabeen, Home Duties, the deceased, and I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased.

4. My means of identifying the Will are:

The deceased was my mother and I knew her all my life. The Will is in the deceased’s handwriting. During that time, I saw her sign her name on many occasions. I know the signature at the foot of the Will and can identify it as that of the deceased. I saw the deceased sign the Will, and, also, the attesting witnesses at her request and in her sight and presence and in the sight and presence of each other.

5. The attesting witnesses to the Will are Hans Czajkowski and Christina Dixon.

6. The deceased died on 15 September, 2006, aged 82 years and I believe that the deceased is the “Irene Elizabeth Dampf” referred to in the Certificate of registration of death which is annexed and marked ‘A’.

The affidavit also includes a statement of all assets of the deceased of which the plaintiff was aware.

19 In the plaintiffs later affidavit of 6 June 2009 he deposed as follows in terms of the occasion concerning the signing of the Will by his mother:

9. In about May, 1999, I went to the Warriewood Square Newsagents and obtained a Will kit. I carried the Will Kit around in the glove box of my car for some time before I gave it to the deceased.

10. Shortly prior to 22^nd June, 1999 I rang Hans Czajkowski and said to him words to the effect:

“Mum wants to make a Will. We would like you and Tina to witness it. Can we come around to your home.”

He said words to the effect:

“That’s fine.”

Hans Czajkowski and Christina Dixon were husband and wife and had been neighbours and friends of our family for many years. We used to see them socially and Hans did carpet and lino - laying for the deceased and my father.

11. On the morning of 22^nd June, 1999 I collected the deceased up from her home. We drove to Hans and Tina’s home. On arriving I pressed the buzzer and we were met by Hans who invited us in. We sat at their dining room table. After having a cup of coffee, I said to the deceased words to the effect,

“Mum, as we have come to Hans and Tina’s so that they can witness your Will, you have to write it out indicating who you want things to go to.”

The deceased then mentioned her assets and where she wanted them to go.

The deceased put the Will Kit which I had purchased for her on the table.

On a piece of pad paper she then wrote out a document in her own handwriting. I think, but cannot totally recall that she read from the material in the Will Kit which was on the table. Annexed hereto and marked with the letter “C“ is a copy of that document. The Will Kit remained in front of her on the table and remained uncompleted.

12. When she had completed the draft she handed me the draft document which we discussed. The precise nature of those discussions I cannot recall but they related to certain provisions of the draft Will.

13. Following our discussion the deceased started to write out the Will in her own handwriting, using the Will Kit which had remained on the table. As she wrote she spoke out aloud, saying words to the effect “My home at Narrabeen I want Stevie to have” “My unit at Manly I want Richard to have” and “My property at Collaroy I want you to have” When she spoke of the Collaroy property she looked at me as she spoke

The deceased, also, said words to the effect:

“I want Stevie to receive $30,000.00 to help him and $10,000.00 to Lisa to show her that I appreciate what she has done for me. I want any moneys left in my bank accounts to go to you and Richard equally.”

When she had finished writing she read it over and then showed it to me.

She said words to the effect:

“Have I covered everything that I own?”

Then I said in words to the effect:

“Yes. I think so.”

14. Immediately after she had said this, I saw the deceased place her signature at the foot of what she had written and also the date. She was still sitting at the dining room table when she did this. When the deceased dated the Will “22/6/98” I noticed she had made an error as the date was “22/6/99”. I said to her something to the effect:

“Mum you’ve made a mistake it’s 1999 not 1998. I think that the whole document needs to be re-written and we don’t have another Will-Kit. Why don’t we just leave the date as “98” and that shouldn’t cause a problem.”

The deceased said words to the effect:

“That seems fine by me.”

Hans Czajkowski and Tina Dixon remained sitting at the table during this period.

Tina then said something to the effect:

“I don’t feel comfortable with leaving the date as ‘98’ rather than ‘99’”

I then said words to the effect:

“As we can get it re-done by a Solicitor in due course it should be okay to leave the date as “98”.”

Tina then said words to the effect:

“Okay then.”

The deceased them slid the document across the table to Hans and Tina. I then saw Hans and Tina one after another sign his and her names, writing their names and addresses under their signatures, and each dating the document “22/6/98”. They signed the document in the deceased’s presence and in the presence of each other. The document I saw them sign is the same document which I am seeking to have admitted to Probate

15. I believe that the information contained in this affidavit is true.

The legal principles

20 Where a Will has, on its face, been regularly executed there is a rebuttable presumption that it was regularly executed – see, for example, In the Estate of Theakston (1956) 74 WN (NSW) 113; In the Will of Kimbell [1969] 1 NSWR 414. In Re Unsworth (dec’d); McLeod v Burchall (1974) 8 SASR 312 Bray CJ said the presumption will apply not only in the case of “perfect” attestation clauses, but also where there has been an “unconventional” attestation clause. The presumption of regularity is encompassed in the maxim omnia praesumuntur rite esse acta - see Harris v Knight (1890) 15 PD 170 per Lindley L.J. at 179-180; Burnside v Mulgrew; Estate of Doris Grabrovaz [2007] NSWSC 550 per Brereton J at [19]; and see also In the Will of Kimbell, ibid.

21 The basis upon which presumptions will be rebutted will depend upon the regularity of circumstances and trusts. As Bryson AJ observed in Sullivan v Mouglalis; Estate of the late Willem Wyma [2008] NSWSC 1326, at [11]:

“In contested probate business the Court expects to hear evidence of attesting witnesses or at least one of them, if available, and it is usual that the attesting witnesses give evidence viva voce and do not deal with attestation only on affidavit. However this is not a strict rule and is subject to their availability. If witnesses are simply unavailable ... the Court decides on whatever evidence is available.”

I paused to note that even if both attesting witnesses deny due execution, they may be contradicted by other evidence so that the Court may, nonetheless, be satisfied of due execution – per Brereton J, Burnside v Mulgrew, ibid at 15; Owen v Williams (1863) 32 LJPM & A 159. Accordingly, the evidence of an attesting witness to a Will is not necessarily conclusive: Williams J in Vere–Wardale v Johnson [1949] P 395; and see also Nicholas v Penn [2004] WASC 227.

22 At common law, there is a rule that where an attesting witness to a Will is called by the executor, the latter may cross-examine the attesting witness, whether hostile or not, because the witness is the Court’s witness – In re Brock; Jones v Jones (1908) 24 TLR 839; Hartley v Fuld; In the Estate of Fuld, dec’d [1965] P 405; and see also Oakes v Uzzell [1932] P19. Statutory provisions (viz Evidence Act, Chapter 2, Part 2.1, Division 5) have not amended or affected this rule.

The conflicting evidence

23 Whilst it is true that the evidence given by the plaintiff departed from the evidence given by those who attended Court by reason of subpoenas served upon them, having closely heard each of these witnesses, it is plain that the plaintiff has established that the last Will bearing the date 22 June 1998 was signed by the deceased in the presence of Mr & Mrs Czajkowski who were present at the same time and who attested and signed the same in the presence of the deceased.

24 The plaintiff for his part recalled taking his mother from her home to the Roseville residence of Mr & Mrs Czajkowski.

25 On the other hand, Mr & Mrs Czajkowski recalled that the Will signing took place at their home in Bondi Junction.

26 These differing recollections whilst somewhat puzzling, may be explained by the passage of time. The absolutely crucial matter from the Court’s prospective is that each of the witnesses who have given evidence was quite clear in their evidence that they were present at the same time when the deceased signed the Will.

27 Ms Czajkowski was quite clear in recording that the deceased was present when she and her husband in her presence signed the document; that was the only document each of them ever witnessed for the deceased. Each was present when the other signed.

28 Whilst it is true that the evidence given by Mr Czajkowski was given from time to time in somewhat stilted fashion, he materially gave evidence as follows.

“Q. May we take it that you wouldn’t have witnessed the person signing the document unless you’d seen that person sign it?

A. Yes, that would be right.

Q. So even though your memory is impaired, may we take it that at the time you signed that document you saw Ms Dampf sign it herself, put her signature on it?

A. To be honest, I can't recall.

Q. You can’t recall?

A. No.

Q. But you would have signed it, you would have witnessed her write, you wouldn’t have signed it, you wouldn’t have witnessed her writing unless you had seen at least her sign her signature would you?

A. Well I’m not certain, I would certainly witness my wife’s signature, yes, that’s my function.

Q. Well when your wife placed that signature on the document, this was at your dining room table or a table in your house wasn’t it?

A. I presume.

Q. Sitting around a table?

A. Well I can't recall, I presume it would have been, yeah.

Q. And Ms Dampf was there wasn’t she?

A. Miss Dampf had been there a few times yes.

Q. And she was sitting at the table as well?

A. Well, more than likely of course.

Q. And when you signed the document, your wife Christina was present wasn’t she?

A. Yes.

Q. And so was Ms Dampf?

A. Yes.

Q. And when you signed it your wife was present when you signed your name?

A. Yes.

Q. And so was Ms Dampf?

A. Yes.

Q. And finally, I’m going to put to you again, do you have any recollection of seeing Ms Dampf put her signature on that document?

A. I couldn’t swear to it. I certainly didn’t know that it was a Will, however.

Q. But it is more probable that you would if you were to put your name down on the document to witness that document, isn’t it more probable than not that you saw her put her signature on that document?

A. Well Ms Dampf was certainly there so I - Ms Dampf was certainly there, Irene, so I would say yes.

Q. Yes, so a bit more probable than not that you saw her witness it?

A. Yes.

Q. Even though you can’t now recall?

A. Yes.”

29 Travelling next then into the evidence given by Ms Czajkowski, she was shown the last Will and carefully shown the handwriting on the document, including the dates. It was pointed out to her that in the bottom left hand corner there is what appeared to be a signature and printed underneath, Hanz Czajkowski with an address Bondi Junction.

30 She was also shown that there was a next signature, J Dixon, JP. That was her writing and underneath in writing form, Christina Dixon was printed. She accepted that was her writing. She was asked:

“Q. You wrote that on the document?

A. Yes.”

She was asked,

“Q. If you have a look at the signature immediately above that, that is under the handwriting of Hanz Czajkowski, do you recognise that as your husband’s handwriting?

A. Yes sir, I do.

Q. And do you recall having placed your signature on that document?

A. Yes I do.

Q. And when you placed that signature on your document was it at your then house at Rozelle I think that you were living, is that correct.?

A. No, not at this stage to my recollection.”

She was then asked further questions in relation to her husband and she having been friends of Ms Dampf’s for some years. She was asked whether in June 1999 they came to her house and she answered in the affirmative.

Further questions were:

“Q. And you saw Ms Dampf - did you see Ms Dampf write out that document?

A. I don’t recall her writing out that document at Rozelle, sir.

Q. But you recall her writing the document out at your house?

A. I recall to the best of my memory, I recall Ms Dampf with the document wishing it to be executed in front of my husband and I.

Q. In front of you and your husband?

A. Yes.

Q. Did you see Ms Dampf put her signature on that document?

A. Yes sir, I did.

Q. You were present at that time?

A. Yes, yes.

Q. And so was your husband?

A. Yes.

Q. And did you then place your signature after or your husband place his signature on that document, you saw him?

A. Yes.

Q. And Ms Dampf was present?

A. Yes she was.

Q. When he did that and you then placed your signature on that document?

A. Yes.

Q. And Ms Dampf was present when you did that?

A. Yes.

Q. And that was on the dining room table I think at your house was it not?

A. Yes, yes it was.

Q. And you will see that the date appears to dated or bears or has written on it 22 June 1998?

A. Yes.

Q. Do you recall that when that document was dated that you said to Ms Dampf something along these words, ‘I don’t feel comfortable with leaving the date 98 rather than 99’?

A. No sir, I don’t recall that.

Q. But you have no doubt that at the time Ms Dampf placed her signature on that document that you and your husband were present?

A. Absolutely.

Q. And you saw her do that?

A. Yes sir.

Q. And she was present when you and your husband and you both witnessed that document?

A. Yes sir.”

31 She further gave evidence that this was the only document she had ever witnessed for Ms Dampf and she did not remember witnessing any other document for Ms Dampf.

32 In my view the plaintiff has established an entitlement to the relief which is sought. The failures of relevant recollections in relation to the particular place where the Will was signed whilst in some cases may require considerably more evidence than in this case, is not a factor which has troubled the Court following the evidence given by the respective witnesses today. Likewise the Court is satisfied that an adequate explanation has been given of the apparent mistake made when the deceased had signed the document believing that there were some difficulties in changing a date once it had been committed to paper. These are the sorts of circumstances which lay persons face and the Court is satisfied, as I say, with the explanations given by the plaintiff and as appropriate by those further witnesses who have today come forward.

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LAST UPDATED:
15 June 2010