Un-happy Holidays Part 3 & 4

Un-happy Holidays Part 4: Not on Santa’s ‘Nice’ list – Credibility in Contested Estates

Ever wondered how a Supreme Court Justice might describe you or your evidence?
As the last article in this festive series, here’s a summary of interesting descriptions found in contested estate judgments.

Karpin v Gough [2022] NSWSC 471

The witness ‘was a loquacious (and seemingly uninhibited, given some of the detail she divulged) witness, with an engaging frankness but had a tendency to digression and to gloss over inconsistencies in the evidence; and I suspect that her evidence has been unconsciously or otherwise affected by her perspective of the events that occurred. Her evidence was riddled with errors and inconsistencies.’ 

The witness ‘gave inconsistent and unreliable evidence; was prone to exaggeration…; and, on her own evidence, was not above making false statements as to the relationship to various agencies (from whom she was seeking assistance) or medical personnel and third parties at the time.’

Roebuck v Smoje [2000] WASC 312

‘The deceased was a man of obstinate and idiosyncratic temperament…’

Wardle v Wardle [2021] NSWSC 1529

‘He admitted on several occasions “I’m not very good with dates” and his testimony made mistakes in dating events: for example, he was out by a number of years in the ages of two of his own children.’

Smith v Smith [2017] NSWSC 408

‘Freed, in fact, from a financially conservative mindset exhibited by her husband when he was mentally competent, she kicked her heels up more than a bit after he became incompetent.’

Olsen v Mentink [2019] NSWSC 1299

It was an ‘act of self-indulgence, somewhat callous and extraordinarily selfish on the part of the defendant.’

Mentink v Olsen [2020] NSWCA 182

Her ‘denial of involvement was totally unsatisfactory, implausible and entirely contrived.’

Panagopoulos v Panagopoulos [2022] NSWSC 1151

‘A witness whose memory does not extend to remembering his bankruptcy is unlikely to be a reliable witness when it comes to the recollection of much less significant events.’

Moore v Aubusson [2022] NSWSC 1466

‘I found [the witness] to be self-confident, at times confrontational and at times pedantic. I do not suggest that he was lying in the witness box nor that he tailored his evidence but I think it is obvious that he has had a long term ‘project’ (to use his word) in presenting his case in the most favourable light…’

Scott v Scott [2021] NSWSC 1619

‘Overall, I was left with the impression that [the witness] was more interested in justifying herself to the Court than in giving candid and truthful evidence. I think it would generally be unsafe to rely on her testimony except where it is corroborated by, or consistent with the probabilities flowing from, other evidence.’

Wardle v Wardle [2021] NSWSC 1529

‘The …siblings were long estranged from one another. During the hearing they exhibited heightened mutual hostility, which was confirmed by the quality of their recriminatory and acrimonious text message exchanges. They often disagreed about dates and facts. At times it was necessary to choose very carefully between their competing testimony about events, discounting the evidence of each sibling for potential bias against the other.’

Benz v Armstrong; [2022] NSWSC 534

‘…she was a loquacious and voluble witness… prone to exaggeration and I treat with some caution her protestations of devotion.’

Dybac v Czerwaniw; The Estate of the late Apolonia Czerwaniw [2002] NSWSC 1279

‘But his own conduct towards his sister showed an overt disdain for her that pervaded his whole outlook and undermined the Court’s confidence in him as a witness.’

Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519

‘[Witness] and [witness] had clearly discussed aspects of the events in the case between themselves and gave almost identical evidence of many conversations taking place years ago.’

Dodd v Dodd [2022] NSWSC 199

‘… not all his accounts measured up accurately against objective evidence. He tended to minimise his own aggressive conduct towards the deceased and to maximise the deceased’s aggressive conduct towards him. Allowances for that exaggeration and the fact that it perhaps made his own past easier for him to live with must be factored into judging his credibility.’

Scott v Scott [2021] NSWSC 1619

‘There were repeated difficulties in getting direct answers from her. Some answers took the form of speeches in support of her position which were unrelated to the question asked and introduced new and sometimes contradictory ideas. It is difficult to say whether this was conscious and deliberate; the manner in which she gave evidence was consistent with the self-dramatising and narcissistic character deposed to by [the witness].’
I hope you enjoyed the ‘Un-happy Holidays’ series!
I wish you and your family a relaxing break and a prosperous 2023.
Should you require any assistance with contested estates, please contact me on 02 4907 5678, or by email [email protected].

Un-happy Holidays Part 3: Not my wish – Elder Abuse

Family dynamics can be complicated – but at what point does influence turn into elder abuse?

When ‘getting your affairs in order’, succession planners usually recommend that people prepare a suite of documents including a will, a power of attorney and an enduring guardian.

But did you know that the very documents which are designed to protect and assist us if we become incapacitated or die, can be the source of abuse?
The Australian Human Rights Commission estimates that 1 in 6 older Australians have experienced elder abuse[1]. This holiday season take the time to ask yourself, could this be happening to one of your loved ones?
The World Health Organisation defines elder abuse as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.’ Elder abuse isn’t just physically harming someone, it could also take the form of psychological or emotional abuse, financial abuse, or neglect.
If influencing a loved one to make or change their will in a certain way amounts to undue influence or unconscionable conduct - this can render the will invalid. If there is coercion, and the testator thought to themselves words to the effect that ‘this is not my wish, but I must do it’[2] then the validity of the will is in doubt.
During the testator’s lifetime, misuse of a power of attorney could also be a form of elder abuse. Attorneys who breach their fiduciary obligations could become personally liable to account for any ill-gotten benefit.

If you are concerned someone you know may be subjected to elder abuse:
- Resources available include: - Encourage or assist them to obtain independent legal advice
Next week’s ‘Un-happy Holidays Part 4’ will be the final article in this series and will take a light-hearted look at credibility in contested estate disputes.
[1] https://humanrights.gov.au/elderabuse
[2] Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83 per Sir James Hannen P

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