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By Natalie Lenwood- Trainee Solicitor at Kingston Lawyers 23.3.2022

Sometimes the truth does seem stranger than fiction. Contemplating circumstances that ‘can only be described as “scandalous”, Victorian Supreme Court Justice Steven Moore found that a widow, daughter and son had conspired to forge a will of Melbourne businessman Frank Cassar, fearing losing his multimillion-dollar business empire after his sudden heart attack, due to lack of a legitimate will.

Justice Moore found, on the balance of probabilities, that the signature on the will was not signed by Frank, and was in fact, forged by his daughter weeks after his death.

Maltese-born Frank Cassar spent over 30 years growing a small panel beating and tow truck business into a business empire. He amassed extensive holdings of property, including a residential home in Kew, business premises, and leased residential properties. However, Frank became entangled in numerous legal and commercial disputes, and was eventually labelled ‘Australia’s worst landlord’ by The Age on March 9th 2014. Frank faced multiple prosecutions for breaches of residential tenancy law, council infringements, suspension of tow truck licenses and had accumulated $50,000 in fines. Additionally, the Australian Taxation Office had commenced action against Frank, seeking payment of approximately $2.4 million.

Frank’s will purportedly appointed his son, Michael, as his executor and sole beneficiary, with no provision whatsoever for his girlfriend Sandra, his domestic partner of over 30 years, and his three other children.

Additionally, the evidence suggested that Michael and Frank were estranged at the time in which the will was supposedly created.

Over 7 years after probate was granted, Sandra applied to the Court for an order that the grant be revoked on the basis that it was a forgery. Sandra swore an affidavit to the effect that, together with Michael and Teresa, she was instrumental to and participated in a conspiracy to create the alleged forged will. To do so, she claimed she procured, after Frank’s death, a signature on the will which was a reasonable facsimile of Frank’s signature. Additionally, Frank’s brother, a purported witness, swore in an affidavit that he signed the will after Frank’s death.

Michael however entirely denied the will was forged. In attempting to establish such, he relied on evidence from Ray Cassar, who alleged he witnessed Frank sign the will. Additionally, Michael relied upon expert evidence from Mr Neil Holland, a document examiner, who testified that the signature did match Frank’s signature. However, Mr John Ganas, called upon by Sandra, testified that there was strong support for the proposition that the signature on the will was not genuine, and the result of a ‘forgery process’.

Sandra submitted to the court that the forgery was part of a scheme to protect the estate from Frank’s creditors.

The deal was that Michael would get everything but would look after her “later on”
However, 7 year later, Sandra was left with only a car to her name and was broke.

In establishing the will as inofficious, Sandra argued it was not consistent with Frank’s ‘natural affections, and moral duties’. As such, she pointed to her exclusion in the will, despite being Frank’s domestic partner for over 30 years. Additionally, she references the exclusion of Frank’s other children, leaving the entirety to Michael, from whom he was estranged.

Upon considering the evidence, Justice Moore stated that he was ‘satisfied that the circumstances give rise to a real suspicion that the will may not represent Frank’s mind and will’.

In coming to his decision, Justice Moore acknowledged that the plethora of conflicting evidence and sworn testimonies demands a careful assessment of witnesses’ credibility.

Additionally, Justice Moore considered the conflicting handwriting analyses, preferencing Mr Ganas’ evidence, as a result of a more ‘balanced and cogent comparative analysis’, labelling Mr Holland’s evidence ‘unconvincing’.

Justice Moore referenced the ‘sense of crisis’ that was indisputably felt by the Cassar family, with the possibility that the family would ‘lose everything’ if Frank did not have a will. Thus, it appeared plausible that the family would take the ‘drastic step of creating and forging a will’. Consequently, it was ordered that the probate be revoked. This left Frank without a will, which meant that the estate was to be divided in accordance with the Government formula.