McGettigan v Coulter & Anor; Coulter & Anor v McGettigan

[2021] NSWSC 1097

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 other side – where Mr McGettigan was convicted of historical offences of embezzlement and obtaining a financial advantage by deception.

Legislation Cited:

Crimes Act 1900, Pt 5 Div 3 ss 253, 254, 255, 256

Criminal Code 1995 (Cth), s 20(1)

Evidence Act 1995, ss 13, 97(1)(b), 140(2)(c), 128

Health Records Information Privacy Act 2002

Succession Act 2006, Ch 4, Pt 4.2, ss 107, 111

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Griffiths v Lewis (2013) 11 ASTLR 152

Ken Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971

Mekhail v Hana; Makail v Hana [2019] NSWCA 197

Nobarani v Mariconte (2018) 265 CLR 236

Nock v Austin (1918) 25 CLR 519

Poulos v Pellicer [2004] NSWSC 504

Re Culina; Re Culina; Poulos v Pellicer [2004] NSWSC 504

Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137

Song v Ying (2010) 79 NSWLR 442

Van Wyk v Albon [2011] VSC 120

Category:

Principal judgment

Parties:

In proceedings 2018/00238970:

First plaintiff/First applicant: Glen Patrick Coulter
Second plaintiff/Second applicant: Rhonda Anne Coulter
Respondent: John Patrick McGettigan

In proceedings 2018/00174649:

First plaintiff/First cross-defendant: Glen Patrick Coulter
Second plaintiff/Second cross-defendant: Rhonda Anne Coulter
Defendant/Cross-claimant: John Patrick McGettigan

In proceedings 2020/00104101:

Plaintiff: John Patrick McGettigan
First defendant: Glen Patrick Coulter
Second defendant: Rhonda Anne Coulter

Representation:

Counsel:
The Coulters: J. Brown, N. Simone

Solicitors:
The Coulters: M. Field, Field Lawyers
John Patrick McGettigan: in person

File Number(s):

2018/00238970; 2018/00174649; 2020/00104101

Publication restriction:

No

Judgment

1. Mr John McGettigan (“Mr McGettigan”) is the brother of the late Brian McGettigan, who died on 17 April 2018 aged 81. Brian McGettigan’s wife of 50 years, Beverley McGettigan died on 16 July 2018 aged 80. Rhonda and Glen Coulter (“the Coulters”), are Beverley McGettigan’s niece and nephew and the executors of her last will. These parties are involved in both probate and equity proceedings.

2. In his Amended Statement of Cross-Claim in the probate proceedings Mr McGettigan claims that Brian McGettigan made his last will on 16 July 2016 (“the 2016 will”), an instrument which gave the bulk of his estate to Mr McGettigan. The Coulters say that the 2016 will is a forgery. They allege in their Statement of Claim that Brian McGettigan’s last will was made on 19 January 2000 (“the 2000 will”), an instrument which gave the whole of his estate to his wife. They further allege that upon her death, her last will dated 25 May 2016 gave the whole of her estate to the Coulters, an instrument which appointed them as her executors. Probate of Beverley McGettigan’s last will was granted to the Coulters and they  now seek a grant of administration cum testament annexo of Brian McGettigan’s 2000 will.

3. Mr McGettigan does not contest the validity of Beverley’s 25 May 2018 will. But he contends that Brian McGettigan’s 2000 will is a fabrication. The Coulters in turn claim that Mr McGettigan has no standing to challenge the 2000 will. They say that Brian McGettigan made no will earlier than 2000 and as Brian and Beverley McGettigan had no children, if Brian McGettigan died intestate, his wife would have taken the whole of his estate upon an intestacy.

4. Mr McGettigan replies to the challenge to his standing by contending that the Coulters, or Beverley, suppressed a pre-2000 will that Brian McGettigan made in his favour. The Coulters deny these allegations and contend there is no evidentiary foundation for them.

5. In the probate proceedings the Court concludes in these reasons that:

1. the 2016 will is a false document created by Mr McGettigan;

2. the 2000 will is the last will of Brian McGettigan and it should be admitted to probate;

3. there is no evidence of any pre-2000 will of Brian McGettigan giving his estate to Mr McGettigan, who has no standing to challenge the 2000 will; and

4. the probate proceedings are dismissed with costs.

6. In the equity proceedings by his Amended Statement of Claim Mr McGettigan claims a beneficial interest in “Christmas Lodge” a farm in Tennyson, New South Wales (“the Tennyson property”) and other property owned by Brian and Beverley McGettigan. At the time of their deaths in 2018, Brian and Beverley lived and engaged in horse training and breeding at the Tennyson property.

7. Mr McGettigan seeks relief in the equity proceedings to enforce seven inter vivos instruments that he claims he made with Brian and Beverley McGettigan, and in some cases with other persons as well. He claims these instruments confer on him enforceable beneficial interests in the Tennyson property and some of their other property. The Coulters contend that every one of these instruments are a false document created by Mr McGettigan.

8. The seven inter vivos instruments that Mr John McGettigan propounds in the equity proceedings fall into two groups. The first group comprises three agreements, a partnership agreement and two sale agreements, which he claims were made between 1991 and 2016. The second group comprises four leases, which he claims were all made in July 2016.

9. The three agreements in the first group, are the following: a document entitled “Ownership Group Contract Agreement”, which Mr McGettigan says was made on 1 October 1991 (“the 1991 ownership agreement”), a document entitled “Sale and Purchase Agreement”, which he says was made on 27 December 1997 (“the 1997 sale agreement”) and a “Debt and Sale Settlement Agreement”, which he says was made on 24 July 2016 (“the 2016 sale agreement”). In addition to these documents, late in the proceedings Mr McGettigan produced a deed of trust, which he says was made on 17 July 2016 (“the 2016 deed of trust”), the validity and effect of which it is not necessary for the Court to consider in these proceedings.

10. As to the four July 2016 leases, Mr McGettigan claims that Brian and Beverley leased the Tennyson property to him in instruments respectively dated 16 July, 17 July, 24 July, and 26 July 2016.

11. In the equity proceedings, the Court concludes in these reasons that:

1. the three partnership/sale agreements are false documents created by Mr McGettigan;

2. the four leases are false documents created by Mr McGettigan; and

3. the equity proceedings are dismissed with costs.

12. In both proceedings, as a result of the Court’s findings and conclusions the defendants are given the opportunity to make a claim for indemnity costs. The Court’s findings in relation to Mr McGettigan’s conduct are referred to the New South Wales Attorney-General to consider whether a criminal prosecution against him for propounding false documents may be warranted. And the Court’s findings are also referred to the Prothonotary to consider whether the same conduct may constitute a contempt of court.

The Course of These and Related Proceedings

13. At the time of the hearing Mr McGettigan was 85. Despite his age he conducted his own case with resourceful self-confidence and energy. He professes to have worked as a successful accountant for many years. He currently resides in Clifton Hill, Victoria and flew up to Sydney to conduct the hearing in person.

14. Brian and Beverley McGettigan had no children. Brian McGettigan was survived by six siblings, Mr McGettigan, Margaret Hargreaves, Angela Main, Maria Oldfield, Pauline Dickson, and Barbara Godfrey. Both Margaret Hargreaves and Pauline Dickson gave evidence in support of Mr McGettigan’s case.

15. Brian’s and Beverley’s combined estates are worth over $2.15 million. Their principal asset was the Tennyson property, which they held in equal shares as tenants in common before Brian’s death. On 20 August 2020, Parker J ordered the Coulters to sell the Tennyson property. The property was sold on 17 October 2020 for approximately $2.15 million. Net proceeds of sale of $2,050,000 were paid into Court by Field Lawyers on behalf of the Coulters. An additional $50,000 in proceeds was later paid into Court by the conveyancers. The balance of Brian’s estate comprised a bank account with a balance of $1,500 and personal chattels worth approximately $30,000.

16. Six proceedings between the interests of Mr McGettigan and the Coulters are presently active in this Court (including one in the Court of Appeal). But the present hearing concerns only two of the six, the probate proceedings (2018/00174649), and the equity proceedings (2020/00104101), which were heard together. Also listed at the same time were proceedings in the Estate of Beverley Teresa McGettigan (2018/00238970), but after probate of Beverley’s will of 25 May 2018 was granted to the Coulters, the Court was not asked to make orders in those proceedings at the hearing.

17. These matters were originally set down for hearing in August 2020. But Mr McGettigan is a resident of Victoria and the COVID-19 lockdown in that State at that time resulted in Lindsay J vacating the hearing. Mr McGettigan sought leave to appeal from Lindsay J’s decision by filing a Summons Seeking Leave to Appeal on 8 February 2021 (2021/00035473). This initiating process in the Court of Appeal filed by Mr McGettigan, and the appearance of what purports to be a Supreme Court seal on the front page of the Summons Seeking Leave to Appeal dated 17 September 2020, became a topic of controversy at the hearing. This issue is considered in these reasons below.

18. The probate and equity proceedings were set down before me for a final hearing over 5 days from 1 April 2021 to 8 April 2021. The final day of the hearing was vacated and adjourned to 7 May 2021, as Mr McGettigan suffered a medical episode in Court after giving evidence that day. He returned to Court on 7 May after being cleared by his medical advisers. The hearing concluded on 7 May. COVID-19 restrictions did not prevent the trial being a face-to-face hearing throughout, although one witness gave evidence by AVL.

19. On 31 May 2021, Mr McGettigan filed in Court a Notice of Motion to reopen his case seeking to adduce further evidence. That Motion was heard on 16 June 2021 and was dismissed with costs for reasons which the Court indicated would be included with these reasons. On 6 July 2021 Mr McGettigan sought to file another Motion to reopen his case and read additional affidavit evidence. The Court indicated to the parties that it would decide Mr McGettigan’s 6 July Motion at the same time as it decided these proceedings and published its reasons.

20. The parties and witnesses in these proceedings often referred to one another by their first names. The Court will occasionally do the same in these reasons without intending any disrespect to them. But otherwise Mr John McGettigan will mostly be referred to as “Mr McGettigan” and the defendants mostly as “the Coulters”. The late Brian McGettigan will be referred to by that name, or by his first name or as “the deceased”. The late Beverley McGettigan will be referred to by that name or as “the deceased’s wife”, or by her first name.

21. Mr Justin Brown of counsel leading Mr Nicholas Simone appeared for the Coulters, instructed by Mr Mark James Field of Field Lawyers. As earlier indicated, Mr McGettigan appeared in person throughout the proceedings.

Credibility of Parties and Witnesses

22. The Court’s observations as to the credibility of witnesses are generally made where those witnesses appear in the narratives. But observations as to the credibility of the principal actors, being John McGettigan, Rhonda Coulter and Glen Coulter, appear immediately below.

23. Mr John McGettigan. The Court reached the view that it could not accept any of Mr McGettigan’s evidence as reliable, except to the extent that it coincided with undisputed facts, incontestable inferences, or the reliable testimony of other witnesses. Mr McGettigan is intelligent and resourceful. But as a witness he could at times suddenly be belligerent, hedging and querulous. He was often focussed on avoiding being trapped in cross-examination. He commonly added “I may have” to many answers, to give himself room to manoeuvre in answering future questions.

24. Mr McGettigan was deeply suspicious of Mr Brown and the other lawyers acting for the Coulters. By the time of the proceedings he had formed a strong dislike for Messrs Field, the father and son solicitors who acted in their local practice for the Coulters. His dislike for Messrs Field was so strong that he was prepared to make entirely unfounded allegations against their professionalism as lawyers. He harboured an irrational (in the sense of not being based on any reasonable grounds) bias against them, largely because by efficiently representing the Coulters they were thwarting his financial ambitions in these proceedings.

25. His manner of giving evidence diminished the Court’s trust in him as a witness. At times under cross-examination he interrogated his questioner asking, “are you reading from a document” to try and flush out whether documents might be used to contradict his testimony, so he could better plan his answers. His evidence was replete with internal inconsistencies, improbabilities, studied vagueness, and uncertainties. And his evidence was often incompatible with that of other reliable and truthful witnesses, who the Court accepts. Without any sense of shame or hesitation or even any apparent insight as to the inherent improbability of his testimony, Mr McGettigan was prepared to adhere to grossly improbable versions of the facts in order to avoid departing from the central elements of his case.

26. The Court has concluded in these reasons that Mr McGettigan forged the central documents upon which that case relies and has given extensively fabricated evidence to invent a wholly fictitious provenance for those fabricated documents. These forgeries and false documents alone are enough to substantially undermine Mr McGettigan’s credibility and the reliability of the rest of his evidence. Although many other features of the balance of his testimony allow the Court to draw the same conclusion, Mr McGettigan’s false testimony was central to his case.

27. How deliberately false Mr McGettigan’s evidence was, is an intriguing puzzle at the centre of this case. Mr McGettigan is an unusual witness in this. He does not appear to notice the boundary that most people recognise as dividing truth and falsehood. His speech appears to glide seamlessly from reality into fantasy. The Court’s working hypothesis in assessing him as a witness, is that he does not understand the difference between truth and falsehood. What he says, when he says it, is true for him at that time and that may differ at another time.

28. Mr McGettigan has admitted in cross-examination that he has convictions for offences of dishonesty. But the Court has not weighed them in the balance against him, principally because they are either too old or too little is known about them for reliable inferences to be drawn against him based upon them. Mr McGettigan’s own testimony in these proceedings is quite enough for the Court to infer that he has an almost limitless capacity for the invention of false stories. As will be seen, the direct evidence of the contested events in these proceedings well founds inferences of forgery and dishonesty against Mr McGettigan.

29. Material was obtained under subpoena from Victoria Police. Mr McGettigan was cross-examined about and ultimately admitted this criminal history. The Coulters argued that the material could be admitted under Evidence Act 1995, s 97(1)(b), as evidence that Mr McGettigan has a tendency to act dishonestly to secure his own financial advantage. The Court is satisfied that the defendants had put Mr McGettigan on notice that the Coulters would rely on his criminal history as tendency evidence. For convenience the material was admitted into evidence. But for the reasons which follow the material either “by itself” or “having regard to other evidence” does not have “significant probative value” within s 97(1)(b).

30. Documents subpoenaed from the Victoria Police confirm that shortly after Mr McGettigan became an accountant that he was charged with and convicted of embezzlement (22 counts), fraudulent conversion (9 counts), and false pretences (3 counts) in 1976. For these convictions he received a fine of $1,700. 45 years later it is difficult to tell how relatively severe this fine was in relation to the conduct in question. And a single group of offences 45 years ago is hardly a reliable basis to judge a person’s present character and tendency to act one way or the other.

31. But the cross-examination of Mr McGettigan about his criminal history revealed much about his approach to giving accurate factual evidence, quite apart from what might be said to flow from the substance of these old criminal convictions. When Mr McGettigan was first confronted with the embezzlement charges he denied ever having been convicted. Mr Brown for the Coulters then made clear to Mr McGettigan that he had access to his criminal records. The following cross-examination ensued:

Mr Brown:     “Have you been convicted of embezzlement?”

Mr McGettigan:    “No.”

Mr Brown:      “You understand that I have your criminal records, sir.”

Mr McGettigan:    “Yes, I do.”

Mr Brown:   “You understand that shortly after you were admitted as an accountant, you were convicted on eight charges of embezzlement. Do you deny it?”

Mr McGettigan:    “On reflection, now I don’t.”

32. This is a neat example of a constant feature of Mr McGettigan’s evidence: he is prepared to say whatever it takes to advance is his case truthful or not, until he knows his cross-examiner has a document that will contradict it. He will then back off from the position he had taken, often reluctantly.

33. Mr McGettigan was also cross-examined about a more recent conviction for dishonesty. In 2010, Mr McGettigan was charged with and convicted of obtaining a financial advantage by deception from a Commonwealth entity. For this offence, he received a three-year good behaviour bond under the Criminal Code Act 1995 (Cth), s 20(1).

34. The Coulters advanced evidence about this conviction on the same basis as Mr McGettigan’s 1976 convictions, under Evidence Act, s 97. The material was admitted. But little is known about the circumstances of this 10-year-old conviction. And there is no suggestion that Mr McGettigan was convicted for an offence of dishonesty at any time in the 34 years between 1976 and 2010. The circumstances of this 10-year-old offending are so unclear at this distance, that it is a weak basis to draw tendency inferences against Mr McGettigan. The Court has not relied upon the fact of the conviction itself, to draw any inference about his credibility.

35. But once again, leaving aside inferences that might arise from the fact of the conviction, Mr McGettigan was unwilling to concede that he had been convicted until confronted with the fact that the cross-examiner had his criminal record. Mr McGettigan again at first denied being convicted, then he admitted it, then he in substance denied it again:

Mr Brown:    “You are somebody who is familiar with obtaining money by deception, aren’t you, sir?”

Mr McGettigan:    “No.”

Mr Brown:    “Do you deny being convicted in 2010 with obtaining money by deception?”

Mr McGettigan:    “I deny it.”

Mr Brown:    “You understand we have subpoenaed your Victorian criminal records.”

Mr McGettigan:   “You don’t - you don’t know the background of that particular matter.”

Mr Brown:     “Do you deny being convicted—"

Mr McGettigan:    “No.”

Mr Brown:      “--in 2010 of obtaining money by deception?”

Mr McGettigan:    “No, I - I deny that. I didn't obtain or attempt to detain - obtain any money by deception.”

Mr Brown:     “Were you convicted of that offence?”

Mr McGettigan:    “I - I pleaded guilty because of the type of charge against me. It was made against about ten other accountants on that particular occasion because we were promoting a - or we - we were promoting what we thought was a legal strategy for investors.”

36. Mr McGettigan’s evidence lacked the spontaneous candour of an honest man. The simple truth – in this case that he had been convicted – was not his first choice in answering the questions put to him.

37. Mr McGettigan’s sister, Pauline Dickson, testified that she was unaware of her brother’s prior convictions. Margaret Hargreaves also told the Court that she was unfamiliar with Mr McGettigan’s criminal convictions. The Court accepts their evidence on this subject, founding the inference that he had some intra-family shame about these convictions.

38. Other admissions Mr McGettigan made when being cross-examined were relevant to assessing his credit. He admitted he was prepared to lie as a strategy, when he judged it would suit his purposes. Mr Brown put to Mr McGettigan that an email that he sent to Mr James Field on 3 August 2018 stating that he did “not know who the beneficiaries of the [2016 will] are”, was false. There was a sound basis for this question, because Mr McGettigan’s case was that the 2016 will was in Mr McGettigan’s possession at the time that he sent this email. The Coulters’ case was that the 2016 will was fabricated at about that time by Mr McGettigan. The full context of the email in question is described later in these reasons.

39. Mr McGettigan appeared reluctant to answer Mr Brown’s questions directly about the untruthful assertions in this email. So, the Court asked some direct questions about the subject of Mr Brown’s cross-examination in which he conceded that he knew what he had said was not true, but he claimed that the falsehood “was a strategy”.

40. Mr McGettigan was not able to give any satisfactory answer as to what his “strategy” was that caused him to make an untruthful assertion in this email. But more fundamentally Mr McGettigan was here admitting that he was prepared to lie as a part of a “strategy” when it suited him. Mr McGettigan’s strategy in this case is to secure Brian McGettigan’s assets for the McGettigan family, rather than to allow them to devolve to the Coulters. There are many examples in this case of Mr McGettigan, being prepared to give untruthful evidence to advance that strategy where he deems it necessary.

41. The Coulters. Both Rhonda and Glen Coulter were excellent witnesses. They were both measured, thoughtful, direct, truthful and reliable. They appeared variously disconcerted, distressed or annoyed about Mr McGettigan’s pursuit of these at times fanciful proceedings against them. But their annoyance did not distort their evidence. None of the account of the facts that they gave in their evidence was seriously challenged in cross-examination. The Court accepts all their evidence.

42. The probate proceedings and the equity proceedings commence with a narrative of findings of the history relevant to each proceeding. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.

The Probate Proceedings

43. By their Statement of Claim the Coulters seek a grant of letters of administration annexing the 2000 will in solemn form. Mr McGettigan’s Amended Statement of Cross-Claim seeks a grant of probate of the 2016 will to him in solemn form. The Coulters deny Mr McGettigan’s standing to challenge the 2000 will. The circumstances of its execution having been put in issue; they are fully considered here. But the origins of the present dispute lie in the McGettigan family history, which is considered first in this narrative.

Brian, Beverley & the McGettigan Family – Early Years

44. Mr McGettigan’s account of much of his early family history can be accepted. Mr McGettigan is the third of nine children born to John and Margaret McGettigan between 1933 in 1954. Three of the nine children have died and six survive. Mr McGettigan was born in 1935 and was aged 85 at the time of the hearing. The McGettigan family have a background in farming. Mr McGettigan grew up on a farm owned by his grandparents in Byron Bay before moving in the 1950s to a dairy farm owned by his parents in Myocum in the Northern Rivers region of this State.

45. Brian McGettigan, the deceased, was the next younger sibling to Mr McGettigan, being born in 1936. He left school in 1953 and lived and worked on the family farm until 1963, when he moved to Sydney. Mr McGettigan also worked on the family farm with his brother Brian before he left the farm to pursue other employment. In 1963 Brian accepted a job as a product representative with Castrol Oil Co (“Castrol”), which required him to move around this State in the following years.

46. Mr McGettigan says and the Court accepts that once Brian moved away from the family farm at Myocum, that he remained in close contact with Brian “for the whole of his life”. Many factors indicate that this is likely to be correct. Mr McGettigan and Brian were very close in age, Mr McGettigan being the elder by a little over 12 months. These proceedings demonstrate that Mr McGettigan had long taken a close interest in Brian’s family and financial affairs. Whilst the Court does not accept much of what Mr McGettigan says about his financial dealings with the deceased and his wife, Mr McGettigan’s general personal interest in his brother’s welfare and progress in life can be accepted.

47. Although they were separated by their work, Mr McGettigan spoke on the telephone every few months to Brian. They discussed Brian’s various business ventures, including the purchase of hotels and farms. By 1972 Mr McGettigan had become an accountant, so he gave informal financial advice to his brother.

48. About the time Brian commenced his new job in 1963, he met his future wife Beverley. Brian and Beverley were married in 1965. Mr McGettigan attended the wedding.

Brian and Beverley McGettigan’s Relationship

49. Not long after Brian and Beverley were married Mr McGettigan began to form an adverse view of Beverley. Whether she deserved Mr McGettigan’s negative opinion was much debated in the proceedings. But it is beyond doubt that Mr McGettigan had a poor relationship with Beverley from an early time, even to the point of holding her in contempt.

50. Mr McGettigan spoke openly of his disdain for Beverley. He says that Brian confided in him that Beverley was conducting adulterous relationships with other men behind Brian’s back.

51. About two years after Brian and Beverley were married, Brian was posted to the town of Tumut as part of his work as a sales representative for the oil company that employed him. Beverley did not go to Tumut with him. She remained living in the suburb of Burwood in Sydney, whilst working as an administrative assistant for what was then the Bank of New South Wales. Brian travelled to Sydney and visited Beverley on weekends.

52. Mr McGettigan says that in 1969, his brother Brian disclosed to him during one of these weekend visits to Sydney: “I think Beverley is seeing someone else”. Mr McGettigan says that in 1970 his brother Brian returned in conversation to the subject of his and Beverley’s poor marital relationship, telling Mr McGettigan that: “I am considering getting a divorce from Beverley. I am sure she is having an affair with another man”.

53. The Court is cautious about accepting evidence of conversations occurring over fifty years ago about the private relationships of a married couple, who are now both deceased. Many factors magnify this ordinary caution in this case. Brian and Beverley remained married between 1965 and 2018, a period of 53 years. Neither of them ever initiated divorce proceedings against the other. They always lived in the same household together. Mr McGettigan has a well-developed capacity to invent false evidence. Moreover, it assists Mr McGettigan’s claims to Brian’s estate to disparage the marital relationship between the deceased and Beverley.

54. Brian and Beverley McGettigan’s marriage may have been far from perfect. The Court does not have to decide in 2021 whether allegations of adultery in 1969 were justified. All that is relevant for present purposes is whether there was tension between the couple and the general nature and intensity of that tension. It is also relevant to know whether Mr McGettigan and some other McGettigan family members formed a very hostile relationship towards Beverley. These issues are relevant to the probability, or otherwise, of Brian McGettigan making the 2016 will and entering the inter vivos transactions which Mr McGettigan contends that he did.

55. The Court accepts that there were significant tensions within Brian and Beverley’s marriage. The evidence explored these tensions in several directions. Mr McGettigan believed that Beverley had been with other men during her marriage. There was evidence that Brian had taken up with another woman. In the Court’s view it can be concluded that Brian and Beverley McGettigan at times led separate lives during their marriage and that their relationship was stressed by issues of marital fidelity. But beyond that it is difficult to draw any firm conclusions other than that Mr McGettigan and his family members were very hostile towards Beverley.

56. Mr McGettigan and other McGettigan family members were also critical of Beverley because of their belief that she drank too much alcohol. Mr McGettigan told the Court that Beverley was a “heavy drinker and smoker” and that Brian was “a non-smoker and social drinker”. In cross-examination, Mr McGettigan reiterated that Beverley “was a drunk and an alcoholic”. The development of a family view that Beverley was too close to alcohol is not entirely surprising. As will be seen below, Brian and Beverley’s entrepreneurial skills led them to acquire and operate hotels over several decades.

57. The Coulters did not accept the description of their aunt as an alcoholic. But they accepted that difficulties existed between the couple. Beverley had confided to Glen and Rhonda Coulter more than once that she and Brian did not have a good relationship and there was no trust between them.

58. In the Court’s view the probabilities are that once they entered the hotel industry Beverley commenced to drink at levels heavier than what the McGettigan family regarded as socially acceptable. But the Coulters are reliable historians and the Court is not prepared to find that she was an alcoholic, although her alcohol consumption is likely to have contributed to the other marital tensions with Brian.

59. Other McGettigan family members expressed aversion to Beverley. For example, Mr McGettigan’s sister Pauline Dickson, testified that Beverley had been a “chronic alcoholic” but the Court does not accept this as an accurate description. It was clear she disliked Beverley intensely. She agreed emphatically that she “[m]ost definitely did not” have a “close relationship” with Beverley. Upon closer questioning Pauline Dickson conceded her knowledge of Beverley’s alcohol consumption was “[n]ot firsthand”. The Court places little weight upon her opinion on this subject in part because of her preconceptions. She had firm convictions about the entitlement of the McGettigan family to an interest in the Tennyson property. But upon analysis her evidence did not touch directly on any main issue.

Brian and Beverley, Hoteliers and Farmers – 1975 to 1990

60. Commencing in the 1970s Brian would seek Mr McGettigan’s accounting and financial advice. The Court accepts that Mr McGettigan would often discuss “Brian’s various business ventures, such as the purchase of hotels, and farms” with him.

61. In around 1975, Brian left his job as a product representative for Castrol. With the financial assistance from his father, Brian purchased a hotel business in Waterloo, Sydney. Brian and Beverley moved into the hotel to live and work together.

62. The couple developed an eye for hotel businesses. For the next decade they successfully bought and sold hotels. Their business model was to buy run down hotels, build up the business operations and sell them for a profit. Mr McGettigan says Brian undertook these purchases and was responsible for running the various businesses. But there is much incidental evidence of Beverley conducting day-to-day operations and banking for these businesses. It is safe to infer that Brian and Beverley were acting as a business partnership in the decision-making for their business model.

63. In 1979 Brian and Beverley purchased land in the Northern Sydney suburb of Davidson (“the Davidson property”) as joint tenants on which they constructed a house. They lived together at the Davidson property for many years while they managed their Sydney hotel businesses, although their personal lives were growing more distant. In the years that they were living at the Davidson property the Court accepts Mr McGettigan’s account that Brian told him of his suspicions that Beverley was “having more affairs”. Mr McGettigan says that he “never observed [Brian and Beverley] hold hands, kiss, or show any affection in public”. It can be accepted that they were not a demonstrably affectionate couple, but the Court does not accept Mr McGettigan’s characterisation of their relationship during this period as more of a “business type relationship”.

64. But on the other hand, Glen Coulter describing their marriage as “a solid business and family relationship” as he does is presenting something of an oversimplification. The Court accepts that in about 1981, whilst Mr McGettigan was visiting Sydney on business, he met up with Brian at one of his hotels, when Brian confided that he and Beverley “now live our separate lives. She lives her life and I live mine”. The Court also accepts Mr McGettigan’s evidence that for a period in the 1980s Brian formed a relationship with another woman by the name of “Wanda”.

65. In March 1984 Brian and Beverley began to try their hands at farming. They purchased a cotton farm at Boggabilla in northern New South Wales (“the Boggabilla property”). They purchased the Boggabilla property as joint tenants, repeating what they had done with the Davidson property, affirming by that structure a long-term view of their relationship. The property was conveniently close to another farm already owned by Pauline Dickson and her husband near Moree, which allowed Brian and Beverley to take advantage of nearby family support with farming equipment and advice. There was no house on the Boggabilla property and Brian stayed there in a caravan, generally without Beverley, when he needed to work there.

66. Beverley continued living at the Davidson property. She ran their hotel operations in the Sydney area whilst Brian travelled up and back from Boggabilla and conducted their farming operations there. The couple’s financial management of these two quite different enterprises naturally diverged.

67. Eventually the couple sold the Davidson property in 1987. The couple rented accommodation in Sydney until 1991.

The Tennyson and Haberfield Properties - 1991 to 2007

68. In 1991 Brian and Beverley decided to opt for semi-rural life just outside Sydney, by purchasing the Tennyson property, once again as joint tenants. Thereafter Brian would spend part of the year at the Boggabilla property and the rest of the year at the Tennyson property, until the couple finally sold the Boggabilla property in 1994. Brian then moved back to the Tennyson property with Beverley. At about the time of the sale the Boggabilla property, Brian and Beverley also purchased a duplex in the Sydney suburb of Haberfield, again as joint tenants.

69. Some family members suggested that Brian and Beverley’s property acquisitions, including the Tennyson property, had been financed by Brian’s parents. Pauline Dickson said that she had been aware from receipts that she had discovered that Brian and Beverley had been making monthly payments to hers and Brian’s parents. She inferred from this that Brian’s parents had contributed to Brian and Beverley “getting started” and possibly even to the purchase of the Tennyson property. But accepting such payments were being made, the Court does not accept there is any reliable evidence supporting an inference that these were repayments of a loan from Brian’s parents. That such a loan may have been made helps ground a general McGettigan family sense of moral entitlement to Brian’s estate but the existence of such a loan is speculative and its relevance to the issues in the proceedings was not established.

70. Soon after the Haberfield property purchase, a watershed was reached in Brian and Beverley’s relationship. At the end of 1994 they decided to sever the joint tenancies in their two major assets, the Tennyson property and the Haberfield property. The reasons for this decision and the explanation for it being made in 1994 are obscure. But it undoubtedly represented change in their outlook on their relationship after almost 30 years of marriage.

71. The two Transfers severing these joint tenancies are both dated Boxing Day 1994 and are signed by Beverley and Brian as transferors and transferees. Mr James Field, the solicitor for the estate who gave testimony in the proceedings, witnessed their signatures on both Transfers. It is not difficult to infer from these facts that during the Christmas period at the end of 1994 the couple decided to take some steps to separate their financial affairs.

68. But they did not divorce, and they continued to live together, although not happily. It can be accepted that Brian and Beverley were largely living separate lives from one another at this time after many years of marital tension. This transaction supports that inference. The transaction also provides support for Mr McGettigan’s evidence that Brian confided in him about this time that he (Brian) never went through with a divorce because: “It’s pointless splitting up at our age”. Mr McGettigan says, and the Court accepts, that in the early 1990s he did discuss with his brother the possibility of divorce but Brian ultimately abandoned the idea, possibly because of a combination of inertia and fear of coping with a divided asset pool and a hostile Beverley.

69. Brian’s resignation to an unhappy marriage is supported by the evidence of Mr McGettigan’s and Brian’s sister, Margaret Hargreaves. She said there had been “so many break-ups in the marriage” between Brian and Beverley over the course of their fifty years together. She confirmed Mr McGettigan’s claims that Brian had seriously contemplated divorce from Beverley three times and had consulted clergy about divorce but did not go through with it. She attributed Brian’s reluctance to go through with the divorce to his fear of Beverley, bolstering that argument with her own account that she did not “dislike” Beverley but rather was “frightened” of her.

70. Margaret Hargreaves had a strong antipathy to Beverley. She thought that Beverley had treated Brian badly and that the McGettigan family deserved far more of Brian’s estate. But despite that antipathy, within its limits her evidence was generally reliable. She made appropriate admissions about the limits of her knowledge about Brian and Beverley’s financial affairs and conceded she did not know much about their family finances or about any alleged partnership between Brian and Mr McGettigan.

71. Brian and Beverley ultimately sold the Haberfield property in 2007. Thereafter they continued to live at the Tennyson property. They remained tenants-in-common in the Tennyson property until their deaths in 2018.

72. Brian and Beverley shared the Tennyson property for 27 years between 1991 and 2018. Brian built up the property to accommodate his activities as a horse breeder, trainer and harness racer and he prepared several champion pacers during his time there.

73. The Court accepts Mr McGettigan’s evidence that he visited the Tennyson property every 6 to 9 months and spoke with Brian six-monthly until 2006 in every three or four months after that. The Court accepts Mr McGettigan’s observations that Beverley drank and smoked regularly, and that Brian was not a smoker and only a social drinker. But the Court does not accept that every time Mr McGettigan saw Beverley she was drunk or under the influence of alcohol. That is inconsistent with the Coulters’ evidence, which the Court generally accepts. But Mr McGettigan’s evidence is to be accepted that Brian and Beverley lived separately in the house and that at times he witnessed Beverley making disparaging comments about Brian and that she often drank significant quantities of alcohol. By this time Beverley herself was unwell and was wheelchair-bound with a diminished capacity to care for her husband in any event.

74. The Court also accepts Mr McGettigan’s evidence that Beverley did not accompany Brian to McGettigan family functions from the Tennyson property. That is not entirely surprising, as it would not have been difficult for her to discern the strong McGettigan family disapproval directed at her. And in the later years she became wheelchair-bound and less mobile.

Brian’s Decline and Death – 2016 to 2018

79. Brian’s health began to decline in mid-2016. His first major admission to Nepean Hospital during this period was from 17 May 2016 through to 22 June 2016. He complained of back pain and malaise and was assessed as having a previously untreated multiple myeloma. He had trouble walking at times and needed a walking frame or a walking stick. He was clearly very feeble and needed assistance at times with feeding and toileting. He was given oxygen from time to time.

80. During this first admission social workers made enquiries about how he and Beverley managed at home. The notes record that Brian “acknowledged he would need assistance”. Social workers spoke to Beverley, who is reported as saying, “she was unable to help [patient] as she wheelchair-bound/fractured shoulder”. In-home services were not organised before his discharge. Brian ultimately discharged himself against medical advice on 22 June 2016. The medical judgment in late June was that Brian’s condition was still sufficiently debilitating that he was better off in hospital than with inadequate services at home.

81. He was readmitted to Nepean Hospital on 7 July 2016, on referral from the cancer care clinic with acute renal failure on a background of multiple myeloma. He continued to be treated for multiple myeloma until his discharge on 25 July. Midway through this admission period Mr McGettigan alleges, and the Coulters dispute, that Brian left Nepean Hospital and executed the July 2016 will near North Richmond station, some 23 kilometres away and just under 30 minutes by road. The Court concludes this is highly unlikely but the nursing notes relating to this day are discussed later in these reasons.

82. In the admission notes on 7 July, Beverley is nominated as Brian’s next of kin to be contacted in case of emergency. The admission notes record under the heading “Social Issues”:

“Lives at home with alcoholic wife who is also abusive

Patient not receiving regular medications, food

Power of attorney and enduring guardianship in place (niece is power of attorney)

Social work consulted for ACAT assessment due to issues with care at home

However patient adamant that he wanted to go home however was happy to follow up with regular clinic appointments and arrange additional private nursing staff if need be”

83. Neither Beverley nor Brian are likely to have been the source of this opinion about Beverley. A judgment such as this in nursing notes is unlikely to have been a judgment formed by the direct observation of medical professionals on admission. Other McGettigan family members were present and may have been the source of that opinion. A nursing progress note dated 7 July 2016 states that one of Brian’s nephews, “Chris” from “Adelaide”, had reported Beverley was not appropriately caring for Brian. Mr McGettigan relies upon these notes to support his case that Beverley was an alcoholic, who as a result was a very imperfect carer for her husband.

84. Similar comments appear elsewhere in the nursing and medical notes and should be treated with caution. Indeed, on 9 July 2016 the nursing notes record that someone who claimed to be the patient’s son told staff that Beverley was telephoning Brian and complaining about things that “were not true”. The notes go on to record:

“Son is worried about the effect this is having on patient’s health. Son has requested that we not put her calls through to [patient] and mentioned he has power of attorney and enduring guardian. Staff spoke to [patient] about who was calling and his wife did speak to him last night.”

85. Brian and Beverley did not have a son. Whoever was giving information to the hospital was confusing hospital staff and weakening the reliability of notes about Brian’s family. It can be inferred from several notes and from his condition during this admission that Beverley had probably not been looking after him well at home. But he wanted to return home and he ultimately did and lived there until his death in 2018.

86. The nursing notes show that Brian progressed early in his admission from being unsettled and incontinent with poor capacity to care for himself to being settled and responding well to regular medication.

87. The inferences to be drawn from these notes should be weighed carefully. They also contain references to Beverley regularly attending upon Brian and giving information to the nursing staff about requirements for his care at home. The nursing notes also support the inference that Beverley was present at the hospital from time to time providing the kind of assistance likely to have been offered by a supportive spouse. And Beverley continued to look after Brian at the Tennyson property between 2016 and 2018 when he was not in hospital for treatment.

88. Brian had further hospital admissions for chemotherapy and ultimately for palliative care. He died on 15 April 2018. His death certificate records his proximate causes of death as cardiac arrest and coronary thrombosis and his last illnesses as, atherosclerosis, multiple myeloma and hypertension.

From Brian’s Death to Beverley’s Funeral – April to late July 2018

89. In the days after Brian’s death, Mr McGettigan and his siblings began making inquiries about Brian’s will. The course of events during this period is at odds with Mr McGettigan’s case that he had arranged the execution of Brian’s will on 16 July 2016.

90. Neither the Coulters, nor their lawyers, could locate a final will for Brian. Brian had long consulted Field Lawyers in Dural for his legal affairs. Brian was an old friend of the senior lawyer in the practice, Mr James Field, but by 2018 his son Mr Mark Field was running the practice. Mr Mark Field made several inquiries about Brian’s will after his death. There was no will in the firm’s safe. He made further inquiries of the Supreme Court and local solicitors without result.

91. Brian’s funeral service was held on 27 April 2018. At the funeral Mr McGettigan approached Mr James Field and asked him whether Field Lawyers held a will for Brian McGettigan. Mr James Field responded in the negative and Mr McGettigan replied: “I guess that means she [Beverley] gets everything then”.

92. No more than a calendar month after Brian’s death Mr McGettigan commenced to correspond with Beverley about aspects of his estate. Showing no sensitivity to Beverley’s feelings, on 15 May, 20 June and 11 July 2018, Mr McGettigan wrote to Beverley requesting that she return a “gold watch and chain” said to have been in Brian’s possession before he died and noting that they belonged to the “McGettigan family”. The last of these letters declared that “no extension of time” would be given to Beverley to produce the watch and chain.

93. This correspondence from Mr McGettigan is wholly inconsistent with him participating in the making of Brian’s will. Indeed, his letter of 11 July 2018 is written on a clear assumption of ignorance of that will:

“Further, it is to Brian’s Will, that it is our right, as his siblings to be advised on his death, firstly that he has a legal will, secondly, who he has nominated to be his beneficial is of his estate, and thirdly who he has nominated as the executor of his estate.”

94. Had Mr McGettigan been aware of the deceased making a will on 16 July 2016 the fair and open way for him to conduct this correspondence with Beverley was to declare his knowledge of the 2016 will and to ask her whether any will had been made since that date.

95. Pauline Dickson pursued similar correspondence with Beverley. On 23 June 2018 she wrote to Beverley declaring that Brian had said to her “Jim Fields, my old schoolmate has my will and Harg and Elizabeth have my power of attorney”. The reference to “Elizabeth” is apparently a reference to Elizabeth Hargreaves, a solicitor who is a niece of the deceased and Mr McGettigan. Pauline Dickson requested a copy of his will in the following terms, referring to her brother, the deceased as “Dig”, an abbreviation of “digger”, a family name for him:

“As a sibling, I would like to see a copy of his Will please (his file was sent to Haberfield at your request). And, who are the executors of his Estate please?

A reply paid envelope has been attached for a copy of his Will. My brother Dig and I handled Mum and dad’s estates, so I know what you would expect!”

96. Beverley did not respond to this correspondence. By then she was ailing and was not far from death herself. None of this correspondence shows any knowledge of Brian having made a will on 16 July 2016.

97. Beverley died on 16 July 2018. In the days following her death, Rhonda Coulter, acting in her capacity as co-executor with her brother, arranged Beverley’s funeral. During this time, she began to look through Brian’s and Beverley’s papers at the Tennyson property. The papers were disordered, on the floor, on the desk and in filing cabinets. The Court accepts her evidence that she found the 2000 will among those papers, in a manila folder marked “Will Kit”.

98. At the time of Beverley’s death on 16 July 2018, Mr Mark Field received a letter from Beston Macken McManis Lawyers, a Sydney-based law firm (now “BMM Law”), in which Elizabeth Hargreaves worked as a legal practitioner. The letter requested a copy of Brian’s will on behalf of "the McGettigan and Hargreaves families: siblings, relatives, attorneys, appointed and guardians of the late Brian McGettigan”. The letter offered a theory about when Brian’s will was made and contended: that the will was “dated 2013”; that it had been sighted “at the home of the deceased”; and that the deceased had referred to the will as having been prepared by Field Lawyers on instructions from the deceased. It is to be inferred that before this correspondence Beston Macken McManis Lawyers were not instructed about the existence of a will of the deceased in July 2016.

99. Margaret Hargreaves followed up these requests by telephoning Mr James Field on 23 July 2018. During this phone call, she asked whether there was a will for Brian McGettigan and if so, who would be entitled to his estate. He replied to her as follows:

“I do not hold and have never held or prepared a will for Brian McGettigan. In 2013 I sent the contents of the safe custody packet to Brian and Beverley McGettigan, but there was no will for Brian McGettigan among those documents.”

100. Margaret Hargreaves then informed him in this telephone conversation that no will had been prepared for the deceased, when he had executed an enduring power of attorney and appointment of enduring guardian. That was apparently reference to the deceased’s creation of such instruments in favour of Elizabeth Hargreaves. But Mr James Field had not been involved in this legal work. He simply told Margaret Hargreaves that he thought Brian’s estate would probably pass to Beverley.

Beverley’s Funeral – 27 July 2018

101. Some members of the McGettigan family were determined to take possession of the Tennyson property, believing they were entitled to it. But they dishonourably exercised their claim whilst the Coulters were honouring Beverley at her funeral.

102. The Coulters arranged Beverley’s funeral for Friday, 27 July 2018. Rhonda Coulter says and the Court accepts that during, and then after, the funeral the following conversation took place between Margaret Hargreaves and Rhonda Coulter:

Hargreaves:   “Things are going to get murky. You know I want Brian's share.”

[And after the funeral]

Hargreaves:   “I want you to have this letter.”

Coulter:   “I do not want to deal with this now. It is my aunt’s funeral. What is it?”

Hargreaves:   “You are not going to like it.”

103. Margaret Hargreaves’ elusive statement was correct. The letter she then handed Rhonda Coulter read as follows:

“Hello Rhonda,

Please be advised that, on legal advice and now that Beverley has passed on, I have with the agreement of my siblings taken possession of my brother Brian Bernard McGettigan estate and property at [the Tennyson property] as from today until further notice.

Please also note that I have secured the property with the change of all locks etc.

As you are not a legal owner of any part of the estate or properties, you are excluded from entering the same said properties and estate.

Also be advised that we have communicated to the Local Police our possession of the property.

Any entry by you, or your family members or your associates will be reported to the Police and trespassing action will be taken.

Please do not approach the property. If you do, I will call the police.

Regarding your personal things, please send a fax to [redacted] listing the items that you may want and they will be arranged to be left by the roadside.

John McGettigan.”

104. Mr McGettigan had indeed taken possession of the Tennyson property whilst the Coulters were at Beverley’s funeral. This letter and the taking of possession of the Tennyson property reveal much about Mr McGettigan. In giving evidence about this incident, Mr McGettigan exhibited not the slightest shame using Beverley’s funeral to take what he thought was his. No threads of common decency can restrain him from taking what he regards as his.

105. But he was also prepared to precipitate action on dubious legal grounds. On the evidence Mr McGettigan had declared he held up to that point his claim to the Tennyson property was baseless. The Tennyson property was held by Brian and Beverley as tenants in common. Beverley’s share had passed under her will to the control of her executors, the Coulters. He had been told by Mr James Field by this time that Brian’s share would probably pass to Beverley and then also to the Coulters. But none of this stopped Mr McGettigan.

After Beverley’s Funeral – Late July and August 2018

106. Somewhat in shock, the Coulters took legal advice from Mr Mark Field and waited a few days. In the meantime, the correspondence from the McGettigan family became more demanding and at times threatening in tone. On 28 July 2018, Mr McGettigan sent a text message to Rhonda Coulter, “Hi Rhonda please tell us where the Watch and Chain is, and we will go easy on you”. He was apparently unable to find the watch and chain at the Tennyson property.

107. This is an example of a disturbing feature of Mr McGettigan’s character: when he does not get his way, he is prepared to inject an element of menace into his communications. But ignoring the menace, Rhonda Coulter remained cooperative, declaring in reply that she knew “my aunt wanted the watch and chain to go back to your family”. The Court accepts Rhonda Coulter’s evidence that the watch and chain were never found.

108. Also, on 28 July 2018, Margaret Hargreaves sent a text message to Rhonda Coulter staking out the McGettigan family’s claim in unmistakably firm language, calculated to deter dissent from Rhonda Coulter:

“Rhonda, just a little reminder, the property at Tennyson belonged to my brother, Brian and we own at least half of it. It was my father’s money in the first place. I thought that you understood this…”

109. About 29 July 2018, Rhonda Coulter gave a copy of the 2000 will that she had found, to Mr Mark Field. His earlier inquiries about whether Brian McGettigan had made a will had been fruitless. Upon receiving the 2000 will from Rhonda Coulter he decided to make no further inquiries. Once the 2000 will was discovered, the Coulters and Mr Mark Field continued to receive letters, emails and other correspondence from Mr McGettigan and his legal representatives in relation to Brian’s estate.

The Coulters Return and the July 2016 Will Emerges – 3 August 2018

110. On 3 August 2018, Rhonda Coulter attended the Tennyson property with Mr Mark Field and three police officers from Windsor police station. Mr McGettigan was not present at the Tennyson property at the time. Under the supervision of the police Rhonda Coulter arranged for the locks to be changed and she and her brother took possession of the Tennyson property as executors of Beverley’s estate.

111. To support their claim to possession of the Tennyson property on 3 August 2018, the Coulters applied in this Court in the Succession List for a limited grant of administration ad colligenda bonis, which Parker J granted in Brian’s estate to allow them to take possession of the Tennyson property.

112. The same day, 3 August, Mr McGettigan began to invent and communicate by email to Mr Mark Field, a counter strategy to bolster a claim to possession of the Tennyson property. The counter strategy involved the invention of the 2016 will and leases of the Tennyson property to Mr McGettigan, among other documents. As this judgment explains, there are many reasons to conclude that the documentary elements of this counter strategy were fabricated. But Mr McGettigan’s counter strategy fictions are better understood when it is appreciated there is an immediate temporal relationship between his eviction from the Tennyson property and his initial development of them.

110. In the first 3 August email to Mr Field, Mr McGettigan denied that he had engaged Beston, Macken McManus Lawyers. Mr McGettigan had enough insight to realise that the firm’s failure to mention the 2016 will could be embarrassing for him later.

111. In his third email to Mr Field, Mr McGettigan for the first time claimed he was a lessee of the Tennyson property, as follows:

“Please be advised that I have a legally prepared and signed lease by both Brian and Beverly McGettigan on the above property. Please advise your clients that they are trespassing, and I will take the necessary legal and criminal action against them.”

115. In his second email to Mr Field, Mr McGettigan for the first time raised the possibility of there being a second will for Brian McGettigan. Tracing out a bare outline of what was to become his story of the July 2016 will, the document was apparently witnessed by Mrs Kathleen Sparkes (who once lived in Melbourne and was since deceased) and Ms Zhan Bei Hua an accountant, (who had once practised in Melbourne but now lived overseas – and was called “Cecilia” by Mr McGettigan). Neither witness had any apparent connection to Brian. Mr McGettigan wrote in his second email:

“Hello Mr Mark Field,

Please be informed Brian instructed that his Will to be updated some time ago, the reason that I know this for a fact is that he asked me to be the Executor. The Will was typed up and witnessed by an Accountant an held by that person.

I do not know who the beneficiaries of the Will are, but I do know for sure, that Beverley Teresa McGettigan is not one.

I am waiting for the Accountant to return from o/sea so as to obtain the Will.

I will not be using your firm to advise me on this matter if the Will is recovered.

John McGettigan.”

116. Mr McGettigan first propounded the 2016 will as an instrument of which he was generally aware but which he had not seen and which he was yet to obtain from the accountant who had witnessed it. This went a little way towards explaining how Mr McGettigan had not previously mentioned this instrument. But Mr McGettigan’s account of only receiving the document in August 2018, given in order to distance himself from earlier knowledge of the document, raises more questions than it answers. Just why it was that Brian would make a will in July 2016 and then entrust it to an accountant that he did not know and who practised in another city, when his brother John who benefitted under the will was at hand to keep it, has never been satisfactorily explained.

117. And if Mr McGettigan’s version is to be accepted and he was present at the execution of the 2016 will, he must have appreciated that he was the sole beneficiary of that will and he would also therefore have known that the statement in his second email, “I do not know who the beneficiaries of the Will are”, was false.

118. On 7 August 2018, Elizabeth Hargreaves, who is named as the executor in the 2000 will, emailed Mr Mark Field, indicating that she did not intend to apply for probate of the will. Around mid to late August 2018, Mr McGettigan engaged Turner Freeman Lawyers in relation to Brian’s estate.

119. On 20 August 2018, Turner Freeman Lawyers sent a letter to Mr Mark Field, advising: that the 2016 will and another document “were held in safe custody by an accountancy firm in Melbourne”; that the 2016 will had come into Mr McGettigan’s possession on 11 August 2018; and that “our client knew of the documents from the time they were made. It was the deceased’s wish that the existence of these was not made known to Beverley”.

120. On 23 August 2018, Turner Freeman Lawyers forwarded Mr Mark Field what was claimed to be a copy of the 2016 will, which appointed Mr McGettigan as his executor and gave him the whole of Brian’s estate. This is the first time a copy of the alleged 2016 will was seen by Mr Mark Field, or the Coulters. Multiple versions of the 2016 will which Mr McGettigan claimed were “originals” later emerged in the proceedings. All these documents were photocopies. None of them was an “original” in the sense of containing the original signature of any person. And each differed in ways from the others. One of these was received from Turner Freeman Lawyers on 23 August 2018. Another was received from John Hall Lawyers on 17 October 2018. And yet a third “certified” version of the 2016 will was annexed to Mr McGettigan’s Defence filed on 9 November 2018 in the probate proceedings. And a fourth version of the 2016 will was annexure A to Mr McGettigan’s affidavit sworn in these proceedings on 9 May 2019. The existence of these multiple “original” but different versions of the 2016 will support the Coulters’ claims of fraud. The various versions are considered in greater detail later in these reasons.

121. By October 2018 Mr McGettigan had changed solicitors. On 17 October 2018, Mr Mark Field received a letter written by John Hall Lawyers on instructions from Mr McGettigan. The letter advised that Turner Freeman Lawyers had ceased acting for Mr McGettigan. It enclosed the second version of the 2016 will in respect of which it foreshadowed Mr McGettigan would make an application for probate. The letter continued:

“It is not clear as to why your client does not agree that the attached will is the last will of the deceased. It may be alleged that the signature of Mrs Sparkes is not hers. The signature does not look like a usual signature for the following reason. Earlier that day Mrs Sparkes sustained a fall and injured her hand. Her hand was heavily bandaged when she witnessed the will. Attached is a copy of an email from Cecilia Zhan, the second witness.”

122. The John Hall Lawyers letter also enclosed an email said to be from Ms Cecilia Zhan addressed to a Michelle Allen as follows:

“I have sent the sworn statement to John, it is his decision what he wants to do with it, but I said in it that I signed the Will as witness and that I saw Mrs Sparkes also sign. Mrs Sparkes had a serious fall at the Central Railway Station and damaged her hands and knees, and when she signed the Will, she had her hand bandaged. Also present was my friend Mei Yuan (Lilly), who also witnessed the both of us signing the will. I have asked Lilly to send a statement to you. Best regards, Cecilia.”

123. This combination of documents appeared to represent that there were several persons resident in Melbourne who could testify to the execution of the 2016 will. For various reasons none of them are available to give evidence in these proceedings. Mrs Kathleen Sparkes is deceased. The Court doubts that Ms Cecilia Zhan exists. And Ms Mei Yuan/Lilly was barely mentioned again. But at the time these documents were first propounded, Mr McGettigan did not appear to appreciate that although 16 July 2016 was two years before his death, Brian was on that day an inpatient in the Nepean Hospital in Sydney.

124. With this general background these reasons now examine Mr McGettigan’s claim that the 2016 will was a valid will of the deceased.

The Challenge to the 2016 Will

125. Summary of Issues. The Coulters’ case theory was that the 2016 will was not only not Brian’s last will but that Mr McGettigan had fabricated it. The answers to the many questions raised by the Coulters about the 2016 will strongly support that case theory.

126. The Coulters’ first contention was that the two purported witnesses, Kathleen Sparkes and Cecilia Zhan, could not have witnessed the 2016 will. Their second contention was that the deceased could not have executed the 2016 will by any of the means that Mr McGettigan describes. And their third contention was there are so many versions of 2016 will that none of them can be accepted as an original document executed by the deceased. All of these contentions are persuasive.

127. Mr McGettigan advanced at least three competing versions of when and how Kathleen Sparkes, Cecilia Zhan and Brian McGettigan all came together to execute and witness the 2016 will. First, in August 2018, when the 2016 will was first advanced, Mr McGettigan claimed that it had been executed in Melbourne, Victoria at the office of an accountant, Cecilia Zhan. The Coulters contend the 2016 will is a forgery, and that, when creating this document, Mr McGettigan wrongly assumed that Brian was able to travel to Victoria on 16 July 2016.

128. When it later emerged that Brian had been in New South Wales undergoing cancer treatment at Nepean Hospital on this date, Mr McGettigan changed his version and contended that Brian left the Nepean Hospital to execute the will and the two Melbourne-based witnesses had flown up to Sydney to witness the will at a cafe in North Richmond. This version would later vary further in Court during cross-examination.

129. Finally, there are multiple “original” versions of the 2016 will; their very number undermining any claim to authenticity by any one of them.

130. The text of the main dispositive provisions in all the versions of the 2016 will is the same, although the formatting of some versions is different. After revoking former wills, it appoints Mr McGettigan as the testator’s “sole Executrix [sic] of this my Will”. Then, in clause 3 it provides:

“3. I GIVE AND BEQUEATH all my real and personal property of whatsoever kind and nature and whatsoever (sic) situate unto my said brother JOHN PATRICK McGETTIGAN for his absolute use and benefit absolutely PROVIDED that he survives me for a period of thirty (30) days.”

131. The 2016 will then provides (clause 4), that in the event of Mr McGettigan predeceasing the testator, the testator appoints the Perpetual Trustee Co Limited of Hunter Street Sydney as sole executor and trustee and bequeaths the whole of his estate “unto my niece Tracy McGettigan.” The balance of the will gives powers to the testator’s trustee.

132. The content of the 2016 will is inherently odd. Nothing is left to Beverley at all. Even if one accepts Mr McGettigan’s case that Brian did not want his share of the Tennyson property to go to Beverley or her relatives, just why Tracy McGettigan, rather than one of the deceased’s sisters, or his attorney, Elizabeth Hargreaves, were not mentioned in the will is puzzling.

133. The analysis below is based upon common textual features of all the versions of the 2016 will and does not seek to distinguish between them. The differences between the various versions of the 2016 will are examined later.

134. (1) Witnesses to the 2016 Will – Cecilia Zhan. At the bottom of the 2016 will is a signature and a stamp bearing the following details: “Cecelia B. Zhan, Public Accountant, 120 Collins St Melbourne 3000, [email protected]”. As previously stated, the Court did not hear from anyone by the name of Cecilia Zhan at trial. Mr McGettigan told the Court that Cecilia was an old friend of his, an accountant whose work address was located at 120 Collins Street, Melbourne.

135. Mr McGettigan’s case did not reveal any objectively verifiable evidence that Cecilia Zhan exists. One might have expected if she were a practising accountant that she would be registered with some professional accounting body and that proof of her registration could easily be obtained. Nothing like that was tendered.

136. On the contrary, objective facts which might confirm Cecilia Zhan’s existence have been removed from the evidence. For example, an early affidavit of Mr McGettigan annexed an image of an expired passport that purported to be that of Cecilia Zhan. But her supposed date of birth was redacted from this document. When asked about this at trial, Mr McGettigan stated that he had redacted her date of birth to protect her privacy. But Mr McGettigan is self-possessed enough to know that there were means by which Ms Zhan’s date of birth could be kept confidential and still be used in Court.

137. Mr McGettigan told the Court that Cecilia Zhan was in New York and unable to give evidence in Australia. On the first day of the hearing, the Court requested that Mr McGettigan contact her so that she could give evidence at trial, possibly by AVL. Mr McGettigan told the Court that because she was residing in New York, difficulties might arise both in contacting her and in arranging for her to give evidence. He told the Court that she “refused to come to Australia or take part in the AVL”.

138. But the Court confirmed that it could arrange for Cecilia to give evidence via video-link in the Supreme Court’s Virtual Courtroom. The Court stressed that this has routinely been done with witnesses both overseas and in Australia especially since the onset of the COVID-19 pandemic. Mr McGettigan did not advance any objectively verifiable evidence that he had tried to contact Cecilia Zhan to give evidence this way.

139. On the fourth day of the trial, Mr Brown made a call from Mr McGettigan for all emails sent to and received from Cecilia Zhan, at least in relation to recent arrangements for her to give evidence. Mr McGettigan gave evidence that Cecilia Zhan had had the same email address for the 20 years that he had known her. Yet when called upon, Mr McGettigan provided several different excuses for why he could not produce any emails in response to Mr Brown’s call. He said that he could not connect to the internet whilst in Court; that he had two or three computers; that some of his computers were back in Victoria; and that, specifically in relation to recent email correspondence with Cecilia Zhan, he had received a “bounce back email” showing his emails had not been received and that his usual practice was to delete such emails.

140. Mr McGettigan was then provided with the opportunity over the luncheon adjournment to meet the call. But he left his laptop in the Courtroom during the adjournment. Upon resuming the hearing, Mr McGettigan agreed he could not locate any emails in his inbox or sent box to or from Cecilia Zhan’s purported email address.

141. As a result of this course of events the Court reached the view that Mr McGettigan was not making any genuine attempt to contact a real person by the name of Cecilia Zhan. The Court does not accept any of Mr McGettigan’s evidence of his dealings with a person he called Cecilia Zhan. The Court is not prepared to infer on the basis of this evidence that the person he describes as Cecilia Zhan even exists.

142. Witnesses to the 2016 Will – Kathleen Sparkes. The 2016 will also bears a signature “K Sparkes” of Northcote, Victoria. A person by the name of Kathleen Sparkes who lived in Northcote, in the state of Victoria died on 6 August 2018, aged 90 years. When the 2016 will was apparently witnessed, Kathleen Sparkes would have been 88 years old. Mr McGettigan’s evidence was that he had never met Kathleen Sparkes prior to her arriving in Sydney on 16 July 2016 to witness the 2016 will. Mr McGettigan told the Court that Cecilia Zhan had arranged for Kathleen Sparkes to travel to Sydney with her.

143. To state this version is to appreciate that it is nonsensical. Why would Cecilia Zhan organise an 88-year-old woman who had no connection with the deceased to accompany her to Sydney to witness a will? Assuming Ms Zhan was a competent professional accountant, why would she, or indeed Mr McGettigan, not organise a local witness to be present at the expected place of execution in Sydney? Indeed, why would Ms Zhan become involved at all and why would she come to Sydney herself when no qualification is required to witness a will? Mr McGettigan’s case could not give satisfactory explanations to these obvious questions.

144. When pressed as to why he did not get someone in the cafe at North Richmond where he claimed the will was executed, to witness the 2016 will Mr McGettigan said “I assume that I could not go and walk into a cafe and ask someone to witness a document”. This in turn raises the deeper question of why the will was being executed at a cafe in North Richmond at all; but still did not explain why local witnesses could not be organised.

145. The Coulters put to Mr McGettigan a more compelling explanation for Mrs Kathleen Sparkes’ involvement: he had discovered that Kathleen Sparkes died on 6 August 2018 and it was convenient to his fabrication to have a witness to the 2016 will who was herself deceased.

146. But Kathleen Sparkes could not have witnessed the 2016 will. Kathleen Sparkes’ daughter, Karryn Sparkes, an entirely credible witness, gave a compelling account of living with her mother in July 2016. She told the Court that it was impossible for her mother to leave the house without her knowledge and her travelling by plane to and from Sydney for the day is unrealistic. Karryn Sparkes was very annoyed at how Mr McGettigan had used her mother’s name in these proceedings but that did not affect the integrity of her evidence. All Karryn Sparkes’ evidence is accepted.

147. Karryn Sparkes says that in 2011 she moved into her elderly mother’s home in Northcote to take on a full-time caregiver role. Her care included dispensing her mother’s daily medication and accompanying her mother whenever she left the home. Karryn Sparkes explained that in 2016, her mother required the highest level of aged care as she suffered from dementia, fragility, and a condition which meant she had to use a walking frame. This immobility meant that Kathleen Sparkes needed assistance with getting in and out of cars. Karryn Sparkes said that her mother had been generally nervous about leaving her home and “really didn’t want to leave…” at any time and that she accompanied her mother whenever she left home. It would have been vastly difficult for a stranger such as Cecilia Zhan to get Kathleen Sparkes out of her home and away for the day without her daughter, who lived in the house, appreciating that she was gone. This part of Mr McGettigan’s case is absurd.

148. Karryn Sparkes does not remember her mother leaving the house for a day in mid-July 2016 to go to Sydney to witness a will. The Court accepts her firm denial that she allowed her mother to spend “quite a lot of time by herself”.

149. And why Kathleen Sparkes? Karryn Sparkes explained that living with her mother she was well-acquainted with her mother’s friends. But she did not know anyone by the name of Cecilia Zhan. And for Mr McGettigan’s case theory to work Cecilia Zhan would have had to arrange directly with Kathleen Sparkes, who in mid-2016 had advancing dementia, to commit to an appointment involving an intra-day return flight to Sydney. It was quite clear from Karryn Sparkes’ evidence that had Cecilia Zhan tried to arrange for her mother to do such a thing that Karryn Sparkes’ would strongly have opposed the idea.

150. Mr McGettigan conceded that he could have had someone in Sydney witness the 2016 will, which would have been far more cost-effective than arranging for witnesses to travel to Sydney. The Coulters' case was that Mr McGettigan engineered to introduce a deceased person to be a witness to Brian’s will, so the witness would be unavailable for questioning. Mr Brown put to Mr McGettigan that he had seen Kathleen Sparke’s death notice in a Victorian newspaper in early August 2018, just before Mr McGettigan first advanced the 2016 will:

Mr Brown:    “Now, Ms Sparkes, who’s the witness to the 2016 will, you became aware on about 2 or 3 August that she passed away, of 2018?”

Mr McGettigan:   “I can't recall exactly when I was advised that she’d passed away.”   

Mr Brown:   “Well, how did you become aware that she did pass away?”

Mr McGettigan:   “I'm not sure now how I became aware of it.”

Mr Brown:   “I'd like to suggest you, you became aware because you saw death notice in the paper, in Victoria, in August 2018?”

Mr McGettigan:   “I don't read the death notices, Mr Brown.”

Mr Brown:   “And you thought it would be convenient to create a will, with a dead witness? Isn't that what happened?”

Mr McGettigan:   “No, of course not. It's ridiculous.”

151. Of course, if Mr McGettigan had been introduced to Kathleen Sparkes through Cecilia Zhan, as was his case, it might be expected that he would have learned of her death through Ms Zhan. His inability to give an account of finding out about her death through Ms Zhan is a telling sign that his account of his contact with Kathleen Sparkes is unreliable.

343. Many of the other usual criticisms of Mr McGettigan’s documents apply to the 2016 sale agreement. There is no evidence it was ever used or sent between any parties or been referred to in any other authentic document at any time since its alleged creation in 2016. The Court does not have an original impressed with the signature pen of the purported signatories of the document.

344. The Court does not accept the 2016 sale agreement is a genuine document. Again, Mr McGettigan is wholly responsible for the handling and production of this document and claims to benefit under it. The most likely explanation for its existence is that it is a false document that he created.

345. The 2016 Lease Agreements. Mr McGettigan has advanced at least four written documents which purport to be lease agreements in respect of the Tennyson property in July 2016. The first lease is dated 16 July 2016; the second is dated 17 July 2016, the third is dated 24 July 2016; and the fourth is dated 26 July 2016, although at least two separately executed leases are dated with the date 26 July 2016. The lease agreements are made between Mr McGettigan as tenant and Beverley and Brian McGettigan as landlords. Each lease agreement is a 6-page typed document.

346. The Court does not accept any of the leases as genuine documents. They are quite implausible instruments that do not fit with the known facts. Like the other documents he has advanced, Mr McGettigan is likely to have created them to suit his purposes, which at the time of their probable creation, at the time of Beverley’s funeral in 2018, was to justify his taking possession of the Tennyson property.

347. Reliable evidence about execution of the leases is non-existent. The landlords are deceased. The Court does not accept Mr McGettigan’s evidence about them. Some of these leases were said to have been witnessed by Cecilia Zhan. But the Court does not accept that Cecilia Zhan exists.

348. It is not necessary to reproduce the terms of these leases but some of their more important provisions are identified here. The first and second lease agreements differ from the third and fourth lease agreements. The first and second lease agreements permit Mr McGettigan (as tenant) to occupy the Tennyson property “to provide safe sanctuary for the Landlords (sic) much loved champion horses and the preservation of the property”. But the third and fourth lease agreements, although mentioning the horses on the Tennyson property, also refer for the first time (clauses 27 to 30) to an obligation upon the landlords to pay the sum of $260,000 to the “Christmas Lodge Horse Welfare Trust” (“the Horse Trust”) for the upkeep of the horses, and create a debt allegedly owing by Brian and Beverley in that sum. Later when the proceedings were underway, when he realised he needed to have this debt owing to himself Mr McGettigan purportedly set himself up as the trustee of the Horse Trust.

349. Once again, the leases show signs of recent invention. Mr McGettigan first sent the lease dated 17 July 2016 to Mr Mark Field by email on 14 January 2019. The lease dated 26 July 2016 was put in evidence on 16 February 2021, as an annexure to an affidavit of Mr McGettigan sworn that same day. Despite their potentially decisive significance to Mr McGettigan defending the proceedings brought before Parker J in August 2018 to remove Mr McGettigan from the Tennyson property, he inexplicably did not immediately deploy them. The Coulters submit that was because they did not then exist and that is probably the best explanation. Mr McGettigan’s explanation is that he did not want to create an aggressive situation. The Court does not accept that explanation and it is at odds with his taking possession of the property during Beverley’s funeral. And the Coulters, who knew Brian and Beverley well, were told nothing about these leases, which were never registered or caveated by the tenant. There is no objective evidence of Brian or Beverley taking actions consistent only with granting any of the leases.

350. Mr McGettigan could give no satisfactory explanation of why there were four executed lease agreements, each being separately dated but all within 10 days of one another and with slightly varied terms. Mr McGettigan asserted that the earlier versions were “drafts”. But the Court does not accept that explanation. Each lease has apparently been formally executed by Brian and Beverley and Mr McGettigan and apparently witnessed by Mr Buckley: they do not appear to be drafts.

351. Moreover, it is implausible that Brian and Beverley would have executed these leases. By giving possession of the Tennyson property to Mr McGettigan the leases contradict the intent of Brian’s 2000 will and Beverley’s 2018 will that benefit the Coulters. And at least some of the leases offer Mr McGettigan lengthy option periods giving him a total term of 15 years in occupation. Once again, Beverley is most unlikely to have wanted to confer such a generous benefit upon Mr McGettigan.

352. The leases are also in tension with the 2016 will falsely propounded in Mr McGettigan’s case. The 2016 will purports to give Mr McGettigan the Tennyson property and all of Brian’s and Beverley’s horses in the event of their deaths. The terms of the lease agreements would therefore substantially overlap with those of the 2016 will.

353. And the leases bear no relationship to the realities of animal husbandry at the Tennyson property. Mr McGettigan professes no expertise in dealing with horses. Why Brian and Beverley would give him a long-term lease of the Tennyson property to look after their horses is a mystery not explained in Mr McGettigan’s case. On the fourth day of the hearing, 8 April 2021, Mr Brown challenged Mr McGettigan with this conundrum and the reason for the setting up of the Horse Trust:

His Honour:    “Had you ever looked after their horses during their lifetimes?”

Mr McGettigan:    “No, I didn’t because I lived in Melbourne. They had no one else to look after their horses so they gave me the responsibility of looking after the horses.”

Mr Brown:       “Why would they pay you $260,000—”

Mr McGettigan:    “They were—”

Mr Brown:       “--to potentially look after their horses?”

Mr McGettigan:   “They weren’t paying me. They’re paying into a trust because—”

Mr Brown:   “A trust that you have not been able to produce any trust records for.”

Mr McGettigan:    “Yes, I have. I’ve - the trust is the Christmas [Lodge] Horse Welfare Trust.”

Mr Brown:       “There are no trust documents in existence, are there?”

Mr McGettigan:   “Yes, there is. I’ve given Mr Field a copy.”

Mr Brown:      “You’ve given Mr Field a trust deed, have you?”

Mr McGettigan:   “A trust deed, yes.”

Mr Brown:      “I call for it.”

356. Soon afterwards, on 26 April Mr McGettigan forwarded to Mr Mark Field a trust deed for the Horse Trust. This document had not been referred to previously and the Court does not accept it is a genuine document. It is discussed further below.

357. The Court rejects Mr McGettigan’s contention that Brian or Beverley owed a debt of $260,000 to Mr McGettigan. There is no objective evidence to support Mr McGettigan’s testimony that Brian McGettigan owed Mr McGettigan a sum of this amount.

358. The Witness Mr John Buckley. As outlined above, several of the documents that Mr McGettigan relies upon in the equity proceedings were witnessed by his friend, John Buckley. Mr Buckley is 86 years of age. He gave evidence by video link at the trial. None of Mr Buckley’s evidence can be accepted. His most frequent answer to questions was “I don’t remember”. He disowned or could not confirm almost every point of his affidavits. He could give no account of witnessing any of the documents he purported to witness in the proceedings. No support can be placed on anything Mr Buckley said. Mr Buckley appeared to be quite seriously cognitively impaired. He did not readily comprehend the questions put to him by video-link and not because of any difficulties with the link. In the end the Court is not confident Mr Buckley had enough cognitive capacity to give evidence within Evidence Act, s 13.

359. Examples of Mr Buckley’s difficulties were abundant. A few examples will suffice. During cross-examination, Mr Buckley was unable to recall for how long he had been a dairy farmer. When asked: “do you have some sort of illness regarding your memory?” Mr Buckley responded: “I have two kids”. While Mr Buckley denied suffering from Parkinson’s or any kind of illness which would make him tremor, he would later tell the Court he has a “bit of a shake”. Mr Buckley gave non-verbal responses on several occasions, including a question as to whether he recalled swearing any affidavits in these proceedings, and whether he witnessed a will of Brian’s. The probable explanation for these non-verbal responses was Mr Buckley’s lack of comprehension of the questions.

360. Mr Mark Field’s evidence, which the Court accepts, supports the same conclusion. In an affidavit of Mr Mark Field sworn 29 July 2020, he deposes to having had a telephone conversation with Mr Buckley prior to the hearing. According to Mr Mark Field’s file note dated 20 July 2020, Mr Mark Field called Mr Buckley and asked whether he had sworn any documents in these proceedings. To this, Mr Buckley responded that he had not. By then though Mr Buckley had reported to swear three affidavits dated 26 July 2019, 24 September 2019, and 9 June 2020.

361. Ms Melanie Holt’s Evidence. Ms Holt’s expert evidence, which the Court wholly accepts, supports the Coulters’ case that the documents Mr McGettigan propounds in the equity proceedings are not the genuine documents that they purport to be.

362. As to Mr Buckley’s signatures, she stated that: (i) the writer of the signatures purporting to be from Mr Buckley on the agreements identified above as bearing his signature were from the same author who was not Mr Buckley; and (ii) the signatures purporting to be from Mr Buckley on those documents did not display the effects of a tremor consistent with a person displaying signs of degenerative neurological disease which affects motor control.

363. Ms Holt also gave her opinion about the alleged signatures of Brian and Beverley where they appear on the documents in the equity proceedings. She said that the various signatures of each of Brian and Beverley displayed a low level of pictorial similarity, which would be a marker of authenticity. Ms Holt ultimately concluded that there was very strong support for the hypothesis that someone other than Brian and Beverley were the author of their signatures on documents in the equity proceedings.

364. Deed of Trust for the Horse Trust. As earlier indicated, on the final day of the hearing, a deed of trust for the Horse Trust dated 17 July 2016 emerged. This had not previously been included in evidence before the Court. When asked why this deed had not previously been in evidence, Mr McGettigan obfuscated, saying it “didn’t occur” to him to put it before the Court. He claimed he had already sent a hardcopy to Mr Mark Field in the mail in late 2019 but did not have any proof of this. The following exchange then occurred between Mr Brown and Mr McGettigan:

Mr Brown:    “The reason the deed of settlement dated 17 July 2016 doesn’t appear in any of your affidavits, I’d like to suggest you, sir, is that you have recently created this deed of settlement.”

Mr McGettigan:    “False.”

Mr Brown:    “And you have created it since the last Court hearing, where you were cross-examined.”

Mr McGettigan:    “False.”

365. On 2 February 2021, Mr McGettigan filed a Statement of Claim in the name of Christmas Lodge Horse Welfare Trust (Proceedings No. 2021/30066). Here he sought the following relief:

“1. An order that the defendants to pay to the plaintiff as the Trustee of the Christmas Lodge Horse Welfare Trust dated 17-Jul-16 a debt owing by the estate of the deceased Beverley Teresa McGettigan to Trustee and Tenant of the lease agreement dated 26-Jul-16 an amount of $360.00 plus penalties for non payment of the invoice with the amount of the penalties to be negotiated.

2. An order that the defendants to pay to the plaintiff as the Trustee of the Christmas Lodge Horse Welfare Trust dated 17-Jul-16 a debt owing by the estate of the deceased Beverley Teresa McGettigan to the Trustee and Tenant of the lease agreement dated 26-Jul-16 an amount of $60.000 plus penalties the lease agreement dated 26-Jul-16 for failing to provide access to the lease property at [redacted] Tennyson Rd Tennyson NSW to the Tenant to inspect the horses.

…”

366. Prior to February this year there was no objective evidence supporting the existence of Christmas Lodge Horse Welfare Trust. It is probable that Mr McGettigan created the Horse Trust documents for tactical reasons to advance his case in these proceedings.

367. A Notice of Intention to Appeal. Mr McGettigan was responsible for one other strange invention in these proceedings, which became Exhibit 11. In December 2020, Mr McGettigan sent an email to Mr Mark Field enclosing a copy of a Notice of Intention to Appeal against certain orders made by Lindsay J on 20 August 2020. The Notice of Intention to Appeal sent in December 2020 already had the seal of the Supreme Court on it. But it appears beyond question that Mr McGettigan’s Summons Seeking Leave to Appeal was only e-filed with the Court of Appeal on 8 February 2021. So the question arises how the Court’s seal could have appeared upon a document that had not yet been filed.

368. On the fourth day of the hearing, Mr McGettigan was cross-examined about this matter. The following exchange occurred:

Mr Brown:    “Can you please explain to the Court how this honourable Court’s stamp came to be on the top right-hand corner of this document?

Mr McGettigan:    “I – once I was – lodged the document with the Court, I assume – and I never got back a – a copy. I put the stamp there to show basically that I’d lodged the document with the Court. I was – it wasn’t my intent –”

369. Mr McGettigan was then issued a warning by the Court pursuant to Evidence Act, s 128. A certificate covering all the evidence he gave in cross-examination in these proceedings was later issued to him by the Court on 15 June 2021. After the Court compelled Mr McGettigan to continue answering Mr Brown’s questions on this topic, he continued:

Mr Brown:    “Sir, I just want to clarify in respect of that document before you, which his Honour now has, you accept that you placed the Supreme Court seal on the document.”

Mr McGettigan:    “Yes.”

Mr Brown:      “Effectively, you were faking the court seal.”

Mr McGettigan:    “No, my understanding which appears to be strong was that once I lodged the documents with the Supreme Court, I was – I right – wrongly perhaps thought I was entitled to place the stamp on the – on the document.”

Mr Brown:    “I’d like to suggest to you that you fraudulently manipulated this document by placing –”

Mr McGettigan:    “No, I’d—”

Mr Brown:    “—a seal of this honourable Court on the document.”

Mr McGettigan:    “It has to be one's intention if they are to commit a fraud. If my - no intention of mine to commit a fraud. It was just purely to signal to Mr Field that I'd lodged that document, which I thought I was entitled to do, but now, I understand that it may be a - was wrong.”

Mr Brown:    “Sir, you never lodged that document with the Supreme Court of New South Wales, did you?”

Mr McGettigan:    “Yes.”

370. Mr McGettigan has not explained how the seal came to be on Exhibit 11 before it was filed. It is probable that he somehow improperly placed it on the document before it was sent to Mr Mark Field. Whilst this does not directly bear upon any issue in the proceedings it was further damaging to Mr McGettigan’s credit.

371. Relief in the equity proceedings. The Court will dismiss Mr McGettigan’s claims in his Amended Statement of Claim in the equity proceedings. There is no basis for the declaratory relief (a) to (f) relating to any of the documents he propounds. Nor is there any basis for any of the consequential relief (h) and (i) that he claims. Costs should follow the event.

Referral to the Attorney-General and the Prothonotary

372. Early in the hearing the Court put the parties on notice that, if substantiated, the allegations of forgery raised by both sides may be sufficiently serious to enliven Crimes Act 1900, s 253. The parties were warned of the potentially serious consequences of adducing evidence in these proceedings. Mr McGettigan was cautioned that it may not be possible for the Court to grant him a certificate under Evidence Act 1995, s 128 in respect of his evidence in chief: see Song v Ying (2010) 79 NSWLR 442; (2010) 273 ALR 213; [2010] NSWCA 237.

373. Section 253 of the Crimes Act 1900 stipulates that:

“A person who makes a false document with the intention that the person or another will use it—

(a) to induce some person to accept it as genuine, and

(b) because of its being accepted as genuine—

(i) to obtain any property belonging to another,

(ii) to obtain any financial advantage or cause any financial disadvantage, or

(iii) to influence the exercise of a public duty,

is guilty of the offence of forgery.”

374. Crimes Act 1900, Pt 5 Div 3 ‘Offences Related to Forgery’ provides for other related offences that include using a false document (without making it); possessing a false document; and making or possessing equipment for the purpose of making false documents: see Crimes Act 1900, ss 254-256. The Court’s findings raise the possibility that Mr McGettigan’s conduct may contravene some of these provisions with respect to the creation and use of the 2016 will, the documents in the equity proceedings and an apparently forged Supreme Court seal dated 17 September 2020 appears on a document that was not filed with this Court until 8 February 2021.

375. In these proceedings this Court does not have the task of determining whether Mr McGettigan’s conduct constituted an offence under ss 253, 254, 255, 256 or any other provision of the Crimes Act 1900. Elements of criminal intent have not been examined in these reasons. But the Court cannot condone contraventions of Australian law. Whether offences have indeed occurred and whether further action is required is for others to investigate. The Court will therefore refer these reasons to the New South Wales Attorney-General for his consideration as to whether any further action should be taken against any person under Crimes Act 1900 arising out of the Court’s findings. The same conduct may also constitute a contempt of Court. The Court will also refer these reasons to the Prothonotary for her to consider whether any further action should be taken against Mr McGettigan for contempt of Court.

Conclusion and Orders

376. The Coulters have been wholly successful in these proceedings. Mr McGettigan has failed to secure any relief on his Cross-Claim in the probate proceedings or on his Amended Statement of Claim in the equity proceedings. His various claims will be dismissed with costs.

377. But the Court has found that Mr McGettigan manufactured numerous false documents including four versions of the 2016 will and at least three other documents in the equity proceedings. And following upon the Court’s findings that there is no reliable evidence supporting the existence of Mr Cai Biad or Ms Cecilia Zhan, it is also probable that Mr McGettigan created false affidavits of both these witnesses. Mr McGettigan’s conduct in creating these many false documents raises the possibility that the Coulters may wish to apply for a special cost order, such as an order for indemnity costs against Mr McGettigan. The Court will make directions for that purpose.

378. As the administrators of Beverley’s estate, the Coulters may wish to seek payment out to them of the funds presently in Court. Liberty to apply will be granted for that purpose and in relation to the implementation of these orders.

379. Finally, the Court has not dealt with the proceedings Mr McGettigan has filed this year, proceedings 2021/00030066 and 2021/0030045 which were not heard together with these proceedings as it was likely that their joinder would have occasioned an adjournment to these proceedings. Both the 2021 proceedings will be remitted to the Equity Registrar. But a party to these proceedings may wish to argue that the Court’s findings in these proceedings create issue estoppels in the 2021 proceedings. When any final argument about costs take place, the Court will hear submissions about what further directions should be made in these 2021 proceedings before they are remitted to the Equity Registrar.

376. Accordingly, the Court makes the following orders and directions:

1. Dismiss the Amended Statement of Cross-Claim filed on 17 April 2019;

2. Dismiss the Amended Statement of Claim filed on 17 April 2020;

3. Grant letters of administration with the will annexed in solemn form to the first and second plaintiffs in the probate proceedings (2018/174649), namely Glen Patrick Coulter and Rhonda Anne Coulter, of the will of the late Brian Bernard McGettigan dated 19 January 2000 which is Exhibit MFI–1 in these proceedings;

4. Remit the proceedings to the Registrar in Probate to complete the grant of letters of administration;

5. The Court orders that the defendant pay the plaintiff’s costs of these proceedings;

6. Any party seeking a special costs order is to do so by motion filed by Friday, 17 September 2021 and made returnable before the Court at 9 am on Friday, 22 October 2021;

7. Any motion filed pursuant to Order (6) shall be accompanied by all affidavit evidence and submissions in support of the motion; and any evidence and submissions in reply by the respondent to the motion shall be filed by Friday, 15 October 2021;

8. The Court notes that it will order that proceedings 2021/00030066 and 2021/0030045 be remitted to the Equity Registrar after the Court hears submissions about what directions should be made in those proceedings considering the Court’s findings in these proceedings;

9. List the proceedings for further directions and any argument about costs at 9am on Friday, 22 October 2021; and

10. Grant liberty to apply.

**********

Amendments

07 September 2021 - Coversheet - added s 140(2)(c), Briginshaw v Briginshaw (1938) 60 CLR 336

[2] - line 6 - duplicate “and” removed

[11] (1), (2) “s” inserted after “document”

[16] - line 4- “was granted” inserted before “to the Coulters”

[19] - line 2 - “Motion” capitalised

[71] - line 3 - “James” inserted, “Senior” removed

[72] - line 5 - comma inserted after “accepts”

[90] - line 2 - comma removed after “Dural”, line 3 - “inquiries” rather than “enquiries”

[93] - line 2 - “11” instead of “16”, “2018” instead of “2016”

[98] - line 3 - quotation marks corrected

[102] - quote line 1 - “’s” inserted after “Brian”

[104] - “to take” instead of “taking”

[105] - line 4 “James” inserted before “Field”

[111] - line 2 - “Court” instead of “Court’s”

[115] - line 4 - “was apparently” inserted

[120] - line 10 - “2016” before “will”

[144] - line 1 - “Kathleen” inserted before “Sparkes”

[150] - line 2 - apostrophe inserted after “Coulters”

[154] - “(2)” inserted

[161] - line 6 - “witness the execution of” corrected

[164] - “Ms Mei Yuan/” inserted before “Lilly”

[186] - (3) inserted

[218] - line 2 - “dementia” uncapitalised

[289] - line 4 - “were” instead of “are”

[314] - line 1 - “equity” uncapitalised

[322] - line 9 - “(see Evidence Act, s 140(2)(c) and Briginshaw v Briginshaw (1938) 60 CLR 336)” inserted

[352] - line 5 - “apparently” inserted

[356] - line 1 - “Mark” inserted before “Field”

[358] - line 1 - “of” inserted after “several”; line line 2 - “equity” uncapitalised

[363] - “Beverley” rather than “Beverly”, “equity” uncapitalised

[371] - “equity” uncapitalised, “costs” rather than “cost”

[375] - “Attorney-General” hyphenated

[377] - “equity” uncapitalised

Decision last updated: 07 September 2021