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McGettigan v Coulter & Anor; Coulter & Anor v McGettigan

McGettigan v Coulter & Anor; Coulter & Anor v McGettigan

Case [2021] NSWSC 1097 31 August 2021

Standing

Equitable Estoppel

Issue Estoppel

Admissibility of Evidence

Succession Law

Equity

Civil Litigation & Procedure

Evidence Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097
Hearing dates: 1, 5, 6, 7 & 8 April 2021, 7 May 2021 and 16 June 2021
Date of orders: 31 August 2021
Decision date: 31 August 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Probate granted of the deceased’s 2000 will. The alleged 2016 will of the deceased found to have been forged by Mr McGettigan. Mr McGettigan’s probate proceedings are dismissed. All the alleged inter vivos instruments made between Mr McGettigan and the deceased and other persons are forgeries. Mr McGettigan has established no equitable interest in the assets of the deceased’s estate. Mr McGettigan’s equity proceedings are dismissed. Mr McGettigan is ordered to pay the defendants’ costs of the probate proceedings and the equity proceedings on the ordinary basis. Leave granted to the defendants to seek indemnity costs. Mr McGettigan referred to the Attorney-General for consideration as to whether any further action should be taken against him on account of the findings of forgery.

Catchwords:
SUCCESSION – Wills, Probate and Administration – validity of wills – Mr McGettigan challenges the validity of a 2000 will created by his brother, the deceased, which gave the deceased’s estate to his wife – the deceased’s wife dies shortly after the deceased in 2018 – the defendants, the executors and beneficiaries of the deceased’s wife, seek probate of the deceased’s 2000 will – Mr McGettigan propounds a 2016 will of the deceased, which gave the deceased’s estate substantially to Mr McGettigan – the defendants contend that Mr McGettigan forged the 2016 will to prevent the deceased’s estate devolving away from the deceased’s siblings – whether Mr McGettigan has standing to challenge the deceased’s 2000 will – application of the suspicious circumstances rule.
EQUITY – Equitable interest in property – Mr McGettigan relies on two groups of instruments to claim an interest in certain real property in his brother’s estate – Mr McGettigan claims that he made both groups of instruments with the deceased and his wife and other persons – the first group instruments are three agreements, allegedly made between 1991 and 2016 – the second group of instruments are four leases made in July 2016 – whether Mr McGettigan forged both groups of instruments – if not, whether Mr McGettigan can enforce the instruments against the real property in the estate of the deceased.
CIVIL PROCEDURE – application filed by Mr McGettigan after judgment is reserved to tender additional evidence six weeks after the conclusion of evidence – consideration of whether to reopen the case in circumstances where substantially the same evidence was put before the Court at trial – where that evidence was rejected on the basis that it was inadmissible hearsay – application is dismissed with costs – a further application by Mr McGettigan to reopen after judgment is reserved also dismissed with costs.
EVIDENCE – Credibility evidence – where both parties allege fraud by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGettigan v Coulter & Anor; Coulter & Anor v McGettigan

Details

AGLC: McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097
Case: [2021] NSWSC 1097
Decision Date: 31 August 2021

CaseChat Overview and Summary

The case between McGettigan and Coulter involved the validity of two wills, a 2000 will and a 2016 will, created by the deceased. The deceased's 2000 will left his estate to his wife, who died shortly after him in 2018. The deceased's brother, Mr McGettigan, challenged the validity of the 2000 will and proposed a 2016 will, which left the estate substantially to Mr McGettigan. The defendants, who were the executors and beneficiaries of the deceased's wife, sought probate of the 2000 will. They contended that Mr McGettigan forged the 2016 will to prevent the estate from devolving away from the deceased's siblings.

The court was required to determine whether Mr McGettigan had standing to challenge the 2000 will and if the suspicious circumstances rule applied. The court also needed to assess whether Mr McGettigan forged the 2016 will and the first and second groups of instruments, and if he could enforce them against the real property in the estate of the deceased. Furthermore, the court had to consider the credibility of both parties given their allegations of fraud and Mr McGettigan's prior convictions for embezzlement and obtaining a financial advantage by deception.

The court dismissed Mr McGettigan's applications to reopen the case and tender additional evidence. It found that Mr McGettigan did not have standing to challenge the 2000 will as he was not a beneficiary. The court also held that the suspicious circumstances rule applied and that the 2016 will was a forgery. Consequently, the defendants were granted probate of the 2000 will. Additionally, the court found that Mr McGettigan forged the first and second groups of instruments and dismissed his claims against the real property in the estate of the deceased.

The court dismissed Mr McGettigan's applications to reopen the case and tender additional evidence, with costs. The court also found that Mr McGettigan did not have standing to challenge the 2000 will and that the suspicious circumstances rule applied. The 2016 will was determined to be a forgery, and the defendants were granted probate of the 2000 will. The court held that Mr McGettigan forged the first and second groups of instruments and dismissed his claims against the real property in the estate of the deceased.

Orders