The Estate of Colleen McCullough

[2018] NSWSC 1126

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

The Estate of Colleen McCullough [2018] NSWSC 1126

Hearing dates:

22-31 May 2018

Decision date:

20 July 2018

Jurisdiction:

Equity - Probate List

Before:

Rein J

Decision:

See [131], [145], [147], [168], [180], [181] and [196]

Catchwords:

SUCCESSION – Probate – Testamentary instruments – Whether either of two informal documents prepared by a solicitor acting for the deceased, one initialled and one signed (the one signed being witnessed), constituted a valid and intentional testamentary disposition; Issue of whether the deceased was coerced or pressured by the Defendant into signing or initialling the documents; Issue as to the date the signed document was signed (being either 24 October 2014 or 17 January 2015); HELD: Both documents were signed or initialled by the deceased on 24 October 2014; testamentary intention established, and coercion or lack of volition not established.

 

SUCCESSION – Probate – Testamentary instruments – Informal document purporting to operate as a codicil – Whether purported codicil initialled on 14 January 2015 was effective to revoke any testamentary disposition by the deceased on 24 October 2014; HELD: Document not a codicil pursuant to s 15 of the Wills Act 2012 (Norfolk Island), and not effective to revoke the testamentary disposition of the deceased on 24 October 2014.

COSTS – Probate litigation – Departure from rule that costs follow the event – Where Plaintiff sought costs out of the estate and Defendant seeks order that Plaintiff pay his costs and on an indemnity basis – Shorter v Hodges (1988) 14 NSWLR 698 applied – Where circumstances led reasonably to an investigation in regard to the document propounded by the successful party – Where investigation caused by neither the testator nor a party to the proceedings; HELD: Exception to the usual rule applies; Each party to pay his or her own costs of the proceedings.

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Wills Act 2012 (Norfolk Island)

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549
Baudains & Ors v Richardson & Anor [1906] AC 169
Boyse v Rossborough (1857) 6 HL Cas 1; (1857) 10 ER 1192
Burns v Burns [2016] EWCA Civ 37
Carr v Homersham [2018] NSWCA 65
Craig v Lamoureux [1920] AC 349
Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 3) [2017] NSWSC 409
Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408
In Re Resch’s Will Trusts [1969] 1 AC 514
In the Estate of Horne (1920) 20 SR 531
Jones v Dunkel (1959) 101 CLR 298
Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206
Nock v Austin (1918) 25 CLR 519
Oreski v Ikac [2008] WASCA 220
Parfitt v Lawless (1872) LR 2 P & D 462
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Ridge v Rowden & Anor (Santow J, Supreme Court of NSW, 10 April 1996, unreported)
Stojic v Stojic [2018] NSWCA 28
Walker v Harwood [2017] NSWCA 228
Wingrove v Wingrove (1885) 11 PD 81
Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116

Category:

Principal judgment

Parties:

Selwa Anthony (Plaintiff)
Cedric Ion Newton Robinson (Defendant)

Representation:

Counsel:
Mr K. Morrissey and Ms M. Bridgett (Plaintiff)
Mr D. Murr SC and Mr D. Ash (Defendant)

  Solicitors:
Maxwell, Meredith & Co Solicitors & Attorneys (Plaintiff)
McIntyres Lawyers (Defendant)

File Number(s):

2015/00116610

Publication restriction:

Nil

Reasons for Judgment

1. These proceedings concern the estate of the late Dr Colleen McCullough (“Colleen”), who died on 29 January 2015 at the age of 77 on Norfolk Island where she had lived for many years.

2. Colleen was a writer of considerable fame having written, amongst other books, The Thorn Birds.

3. Colleen was survived by her husband and the Defendant in these proceedings, Mr Cedric Ion Newton Robinson (“Ric”), whom she had married in 1984. There were no children of the marriage but Ric had two children from a previous marriage. Colleen had no other living relatives.

4. The Plaintiff in these proceedings, Ms Selwa Anthony, was a long-time friend of Colleen and is one of two named executors in a will of Colleen’s dated 12 July 2014 by which she bequeathed her entire estate to the University of Oklahoma Foundation Inc. (“the Foundation”). Colleen had received an honourary doctorate from the University of Oklahoma and had lectured there at some stage. The other executor of that will, Mr Joseph John Merlino, renounced probate. I shall refer to this will as “the Oklahoma Will”.

5. Mr K. Morrissey (with Ms M. Bridgett) appears for the Plaintiff. Mr D. Murr SC (with Mr D. Ash) appears for Ric.

6. Ric contends that the Oklahoma Will is not the last will and testament of Colleen, relying primarily on what I will refer to as “the Exhibit 5 Will” and, alternatively, what has been referred to as “Exhibit 6”, both of which I shall describe in more detail below. Thrown into the mix is a further document which bears the date of witnessing as 14 January 2015 and consists of a handwritten question and answer, a mark or signature said to be Colleen’s and bearing the signatures of two witnesses. The Plaintiff calls this document “the codicil”. Ric disputes that it is a codicil or that it has the effect for which the Plaintiff contends. I shall refer to this document by its exhibit reference, namely, “Exhibit D”.

7. This case is not concerned with the question of whether, if the Oklahoma Will is found to be the last will of Colleen, Ric is entitled to provision out of her estate. The parties were agreed that that question would need to be ventilated in separate proceedings if the Court determined that the Oklahoma Will is the last will and testament of Colleen.

8. In her case, the Plaintiff relies on the following affidavits:

1. Affidavits of Selwa Anthony of 6 August 2015, 24 August 2015, 7 September 2015, 2 December 2015, and 29 March 2018;

2. Affidavits of Meredith Paton of 26 November 2015 and 22 May 2018;

3. Affidavits of Piria Coleman of 28 November 2015, 2 August 2016, 19 April 2018, 8 May 2018, 16 May 2018 and 22 May 2018;

4. Affidavit of Katherine Alison Drayton of 19 July 2016; and

5. Affidavits of Nicola Wright of 24 October 2016, 16 March 2018 and 24 May 2018.

9. In his case, Ric relies on the following affidavits:

1. Affidavits of Helen Jackson of 23 November 2015, 19 February 2016 and 23 October 2016;

2. Affidavits of Lewis Quintal of 23 November 2015, 19 February 2016 and 23 October 2016;

3. Affidavits of Ric Robinson of 23 November 2015, 16 June 2016, 8 October 2016 and 12 November 2016; and

4. Affidavit of Dr Robert Challender of 23 July 2016.

10. I will endeavour in this paragraph, and the following few paragraphs, to set out what is not in dispute between the parties:

1. Colleen and Ric were married in 1984.

2. They lived on Norfolk Island together but, in 2005, Colleen spent several years in Sydney undergoing treatment for macular degeneration with Ric commuting regularly to Sydney from Norfolk Island because Colleen could not fly by reason of the medical treatment she was receiving for her condition.

3. In 2005 both Colleen and Ric executed wills in similar form leaving his and her estate, respectively, to the other. The University of Oklahoma was a beneficiary of part of Colleen’s estate in Colleen’s will if Ric predeceased her. Ric’s evidence was that there had been similar mutual wills for many years before that: see CB2-16, paragraph 9.

4. In 2007, codicils of a limited nature in identical terms were made by Colleen and Ric.

5. By 2010, Colleen was residing full time on Norfolk Island (CB2-17). I shall use the Court Book reference from here on to refer to each of Exhibit A1 (CB1) and Exhibit A2 (CB2).

6. In February 2014 Colleen and Ric engaged Ms Nicola Wright, who was known as “Nikki”, as a carer for Colleen (9am – 5pm during weekdays). Ms Wright has a nursing background in New Zealand and was living on Norfolk Island at the time.

7. On 24 June 2014, Ms Wright contacted Ms Piria Coleman. Ms Coleman was, at the time, in practice as a solicitor on Norfolk Island. Ms Coleman then had a conversation with Colleen in which Colleen told her about her relationship with Ric and that she wanted to find out about getting a divorce, making a new will and revoking a power of attorney given to Ric. Colleen also asked Ms Coleman whether she should contact the police, to which Ms Coleman replied in the affirmative having discussed the issue with Ms Wright.

8. On 24 June 2014, Colleen did call the police to the property in which she and Ric lived and owned (known as “Out Yenna”) and she told Ric that she had done so and that he should leave Out Yenna. She said to Ric in Ms Wright’s presence: “I have called the police because I am afraid of you” (CB2-17, paragraph 18). Ric says that he was amazed by what Colleen had said to him as he had never done anything to put her in fear but he thought it best to move out until the problem was resolved. It was Ms Wright who actually called the police on behalf of Colleen.

9. Ric left Out Yenna on 24 June 2014 and went to live with his son, Wade, a few kilometres away.

10. On 26 June 2014, Ms Coleman met with Colleen and obtained more detailed instructions. They arranged to meet in Sydney at the Hilton Hotel. Colleen was heading to Sydney for a consultation with her eye specialist and Ms Coleman was travelling to Sydney for other purposes. Colleen told Ms Coleman that, as far as she was concerned, she and Ric had legally separated on 24 June 2014: CB1-90, paragraph 21.

11. Colleen travelled to Sydney on 7 July 2014 accompanied by Ms Helen Jackson, a Norfolk Island resident, who acted as her carer and Mr Lewis Quintal, an electrician and also a Norfolk Island resident, who was able to lift Colleen when required and assist Ms Jackson with caring for Colleen.

12. Colleen and Ms Coleman met at the Hilton Hotel on 8 July 2014. Colleen instructed her to prepare a will, leaving her entire estate to the Foundation, saying (at CB1-91, paragraph 30):

“I have no family. I am very fond of [Oklahoma University]. I don’t want to leave anything to Yale.”

She also said, in the presence of Mr Quintal, according to Ms Coleman (at CB1-91-92, paragraph 32):

“My husband Ric has never worked. I have always paid for everything. I’ve done enough for him already. I just want Oklahoma University to be the beneficiary under my will, nothing more.”

13. Ms Coleman prepared a will in the terms instructed and she also prepared a document headed “Attestation” and obtained a document headed “Bequest letter” addressed to the Foundation which she completed for Colleen. She was provided with an original medical certificate dated 2 July 2014 from Dr. W. Metcalfe (CB1-182).

14. On 12 July 2014 Colleen executed the Oklahoma Will (Exhibit C), signed the Attestation (Exhibit F) and signed the completed Bequest letter (Exhibit E). The Attestation was in the following form:

Attestation

Having considered the extent of my estate I have determined not to make provision for my husband RIC NEWTON ION ROBINSON for the following reasons:

1. Adequate provision has been made for my husband RIC NEWTON ION ROBINSON during our marriage. If my husband RIC NEWTOWN ION ROBINSON does not predecease me, any further provision for him would see any beneficiary of my will unfairly disadvantaged.

2. In these circumstances any gift to my husband RIC NEWTOWN ION ROBINSON to the detriment of any beneficiary of my will would be contrary to my intention and the nature of my relationship with my husband.

3. I have sought to achieve equity in the gifts made by me in my will and intentionally exclude my husband RIC NEWTOWN ION ROBINSON as he has benefitted from me throughout the course of my marriage to him.

15. On Ms Coleman’s evidence Colleen initialled the page of the Oklahoma Will bequeathing her estate to the Foundation (“the dispositive page”), but neither Ms Jackson nor Mr Quintal initialled or signed that page on 12 July 2014 nor the page setting out executor powers, “the powers page”.

16. Shortly after 14 July 2014, Ms Coleman prepared or organised the preparation of a revocation of Colleen’s New South Wales power of attorney in favour of Ric. That revocation was signed by Colleen on 27 July 2014 and was witnessed by Ms Alison Drayton, a solicitor who was a friend of Ms Coleman with whom she had previously worked and who happened to be visiting Norfolk Island on that date.

17. On 14 July 2014 Colleen returned to Norfolk Island, together with Mr Quintal and Ms Jackson.

18. On 16 July 2014, Colleen and Ric met at Out Yenna with Mrs Quintal present at Ric’s request. Ric says this followed a call from Mr Quintal’s wife, Mrs Karen Quintal, to him. According to Ric, he and Colleen had the following conversation:

Colleen:   “Ric, I would like you to come back home, and continue to look after me.”

Ric:          “But what about you having called the police?”

Colleen:   “I was sick when I did that. You have never tried to hurt me.”

19. On or about 17 July 2014, Ric returned to Out Yenna.

20. On 21 July 2014, Colleen informed Ms Coleman that she and Ric had reconciled which Ms Coleman noted in a letter to Colleen of 5 August 2014 (see Exhibit B).

21. On 21 October 2014, Ms Coleman visited Out Yenna and met with Colleen. That she saw Ric as well on that date is not disputed but the extent of her meeting with Ric is disputed.

22. Between 21 and 24 October 2014, Ms Coleman prepared a new dispositive page in the same font and nature as the dispositive page of the Oklahoma Will but removing the Foundation as the sole beneficiary and replacing it with Ric.

23. On 21 October 2014, Ms Wright sent to Ms Coleman a draft letter dictated by Colleen (see CB1-410-413) which followed on from Colleen’s discussions with Ms Coleman. In its second paragraph, that letter contains the words, “living beyond our means”, and I shall refer to it as “the LBOM Letter”.

24. On 24 October 2014, Ms Coleman attended at Out Yenna with the new dispositive page and the other pages of the Oklahoma Will. Ms Coleman’s evidence is that, on that day, Colleen placed her signature on a dispositive page described as “PC-16” (and which became Exhibit 5) and her initials on a substantively identical dispositive page described as “PC-15” (and which became Exhibit 6). Ric says that Colleen signed her name on Exhibit 5 on 17 January 2015. He does not know when Colleen initialled Exhibit 6, but accepts that Exhibit 6 may well have been initialled by Colleen on 24 October 2014.

25. There is no dispute that the end of Colleen’s signature ran slightly off Exhibit 5 and on to two documents that were placed underneath, being the powers page and the execution page from the Oklahoma Will.

26. On 25 October 2014, Ms Coleman wrote a letter to Colleen in which she said (at CB1-414):

Dear Colleen

Re: Estate Planning - Sale of Portion 93d

I refer to our conferences on 21 and 24 October 2014 and to your instructions to redraft your Will and prepare portion 93d for sale.

I confirm that the updated Will Is now held in a security packet and that the instructions received are consistent with a harmonious approach to estate planning going forward.

To that end, I have made arrangements with Jane Taylor who resides on portion 93d and Island Realty (David Bell) to have the property inspected to obtain an appropriate sale price.

…

In seeking your consent for payment, I have issued an Invoice in the sum of $500 including 12% GST, as a flat rate and fixed charge for work associated with drafting the fresh Will, our two conferences, and all essential arrangements to act and assist on the sale of portion 93d.

Yours sincerely

Piria Coleman

(emphasis added)

27. An invoice for the work was enclosed (consistent with that letter), together with a covering email and sent to Ms Wright on 25 October 2014 (CB1-409) which stated:

“Please find attached letter and invoice, which clearly document the content of discussions, instructions, and work completed this week.”

28. The invoice referred to above contained the following description of work completed (at CB1-200):

“Attending to further conference with Colleen McCullough to execute fresh Will. Discussed estate planning in more detail and noted letter to Ric had not yet been delivered, although written. Indicated to Colleen that letter was consistent with recommendations at previous conference on 21 October 2014. Encouraged opportunity for Colleen to openly discuss financial issues as they relate to her health care with Ric. Noted it is essential that asset base be realised in order for Colleen to finance health care needs going forward. Accepted instructions to act on sale of portion 93d. File Notes.

Units Spent. 10

Billed By: Piria Coleman”

(emphasis added)

29. From 14 December 2014 to 17 January 2015, Ms Jackson was employed as a carer for Colleen on those days during the week when Ms Wright was not available. Whether she was working at Out Yenna in October 2014, as Ms Coleman asserts, is disputed.

30. On 9 January 2015, Ms Coleman visited Out Yenna meeting Colleen in the company of Ric. There is no dispute that there was a discussion concerning wills and I shall return to the detail of that meeting. Ric said the meeting was on 8 January 2015, but nothing turns on that discrepancy.

31. Between 9 and 14 January 2015 emails passed between Ric and Ms Coleman, and between Mr John Brown (Ric’s solicitor) and Ms Coleman. Those emails contain the following text:

1. 9 January 2015 at 8:09am, Ric to Ms Coleman:

Dear Piria,

I refer to our discussion yesterday, when you came to speak to Col and me.

Following that discussion, I have a couple of questions, which I have discussed with Col, and she has suggested that I ask you about them.

As you know, we have a number of debts, and whichever of us passes away first will leave those problems to the other of us.

In case that becomes my problem, I need to plan for it.

You have told me that Col's will leaves her estate to me.

That being so, is there any reason for me not to be appointed as the executor, and have a copy of Col's will?

Col is welcome to a copy of mine, as she always has been.

Regards,

Ric

(emphasis added)

2. 9 January 2015 at 10:07am, Ms Coleman to Ric:

Dear Ric

[If] Col wishes to appoint you as the executor, we would need to draft up a fresh Will to give effect to that.

I am available to do so prior to Monday 19 January 2015 when I depart Norfolk Island for a short time.

Given that we have correspondence from medical professionals that indicate Col is of sound mind, it would be prudent that I request a certificate of independent legal advice prior to drafting any fresh Will.

At this stage and in all the circumstances, I think it risks being seen as coercive to vary the Will such that you are both executor and beneficiary.

Alternatively, I could draft two fresh "mirror" Wills such that each is exactly the same as the other i.e. where each of you leaves the estate to the other.

Whatever Col's instructions are, or your joint instructions, I think it would be in your best interests to obtain independent legal advice so you aware of the advantages and disadvantages of the decisions you make.

I would even consider approaching more than one other legal practitioner on the Island, so that you can consider their potentially varying views and then decide what is most appropriate.

My main reservation after leaving yesterday is that it is somewhat problematic (at this stage) for me to draft a power of attorney in your favour on Col's behalf for land transactions.

I note in practice it is not uncommon for solicitors on the Island or for bank managers to be granted powers of attorney for land transactions and this is arguably more appropriate in Col's case.

What is awkward is what has precipitated the current change in circumstances i.e. that the revocations of your appointment both in Norfolk Island and New South Wales are so recent.

I think this is also why it is arguably more appropriate to retain the two independent parties as executors to Col's Will, and this reflects my position in terms of arms' length legal advice.

Please call me on 23295 or 51123 if you would like to discuss further but perhaps first try and talk to at least one other legal practitioner, so I can obtain clear instructions from Col.

I need to meet with Col again whatever she decides to do in order for her to complete the advanced health care directive and consider some form of fresh power of attorney for Norfolk Island.

Regards

Piria

(emphasis added)

3. 10 January 2015, Ric to Ms Coleman:

Dear Piria, 10-1-2015

I don't know if you are aware of the fact that Col pays 30% of her income in withholding tax to the U.S. and British Governments. She cannot claim expenses.

Col also pays 15 % of the gross income to her agents. Given that the

executors are entitled to a 3-5 % commission and that my legal advice says;" I see nothing wrong with you (me) being nominated as executor." I would rather that be the case.

The other advice I received was that mirror or identical wills together with a deed providing that neither of us will change our wills is a good idea.

I also think it would be a good idea to get a doctor to certify that Col understands what she is doing.

Regards etc

(Emphasis added)

4. 10 January 2015 at 12:13pm, Ms Coleman to Ric:

Dear Ric

By way of brief response to the attached letter dated 10 January 2015:

1. I haven't been provided comprehensive instructions as to Col's arrangements for the US, UK, and her agents but enough to be aware of certain arrangements she has in place that would change if she passed. It is important that a representative of Col's (whether legal or personal) liaises with her agents to ensure a smooth transition at the time she does pass and when her estate is being administered;

2. the current executors would be entitled to claim commission but you would also be entitled to claim commission as the executor. I haven't yet acted for a party in this jurisdiction that has claimed commission from the estate but there is provision for it in the legislation;

3. there is some merit in mirror Wills in marriages of a long duration, although it would it raises certain legal issues if I were to draft those Wills having regard to Col's (fairly) recent instructions and the circumstances since my involvement;

4. the 'deed' is entirely sensible as it is essentially a written promise between each of you so you know where you stand;

5. I agree to review any documents prepared by an alternate legal practitioner and to cooperate with providing the legal advice required to ensure there is no suggestion Col has signed a fresh Will under duress etc…

6. the first step would be to obtain the certificate of capacity from a medical doctor and it would need to be current at the time the fresh Wills are drafted;

7. in light of these recent developments, I will need to arrange a consultation with Col between 12-16 January 2015 in order to provide her independent legal advice in any event on various decisions she may wish to make in the near future; and

8. lastly I reaffirm my position that it would need to be an alternate legal practitioner that drafts the mirror Wills formalising your role as executor and beneficiary, as it is ultimately contrary to the instructions I have received since Col originally sought my advice in a high state of distress in June 2014.

Let me know what arrangements you come to in light of the above and I will attend to whatever may be required in the coming week, as I depart briefly on Monday 19 January 2015.

Regards

Piria

(emphasis added)

5. 13 January 2015 at 10:49am, Mr Brown to Ms Coleman:

Dear Piria,

Ric has asked me to draft simple mutual wills for himself and Colleen, and a simple Deed agreeing to not change those wills.

He has asked me to send copies to you for your consideration.

They are attached.

Regards

John Brown

32. Exhibit D has the following content:

“Q:   Do you Colleen McCullough Robinson want your last will and testiment (sic) to be that which you drafted in private with your solicitor Piria Coleman

A:   Yes I do”

Exhibit D has at its foot a mark apparently of Colleen and the signatures of Ms Wright and Ms Rebecca (“Beachy”) Hayes. It has as the date of signing 14 January 2015.

33. On 14 January 2015 Dr Robert Challender, a Norfolk Island general practitioner who was based at or affiliated with Norfolk Island Hospital and had previously seen Colleen on several occasions, visited Colleen at Out Yenna at the request of Mr Brown. He wrote a medical certificate (CB2-70-71) which was in the following terms:

“This is to certify I’ve met with Colleen several times over the last 6 weeks in my capacity as her attending G.P. Physically, she’s not in good shape but mentally, I can certainly vouch that she’s sane rational and completely able to make well considered decisions. Equally I can vouch that I’ve seen absolutely no sign that she’s under any sort of physical or emotional duress. Colleen is a very intelligent woman, a realist and pragmatic about her somewhat tenuous state of health. If I’m sitting with her in 5 years having a drink and debating literacy issues I’ll be a happy man.”

34. On 17 January 2015, Ms Coleman visited Out Yenna and met with Colleen. This is another occasion, the events of which are much in dispute, with Ric asserting that Colleen signed Exhibit 5 on that day and Ms Coleman denying that she did. It was accepted, however, that Ms Valerie Martinez attended on that day and that Colleen was asked to execute a power of attorney in favour of Ms Martinez to enable Ms Martinez to sell on behalf of Colleen some Norfolk Island properties that Colleen owned. Ms Coleman and Ms Wright gave evidence that Colleen was unable to sign the document due to her physical incapacity and that a metal stamp containing Colleen’s signature was applied by Ms Wright instead which, according to Ms Coleman, Colleen was not even able to initial: CB1-128, paragraph 91. A copy of that document is at CB1-237. The ‘signature’ is witnessed by Ms Wright and Ms Jackson, and they both declared in that document that they believed that Colleen was “of sound mind and understands the impact of the document.”

35. In the afternoon of 17 January 2015, Ric and Ms Coleman had a telephone conversation as Ric was taking Colleen to hospital. In the course of that conversation Colleen said, in a voice loud enough for Ms Coleman to hear (and yelled on Ms Coleman’s evidence: T116), “Give him what he wants” or “Just give the will to Ric” (Ric’s evidence, see CB2-20, paragraph 38).

36. Ms Coleman, on the afternoon of 17 January 2015, rang Mr Quintal and arranged to meet him at the BBQ area at Emery Beach. She says she brought with her Exhibit 5 and another document, being the powers page from the Oklahoma Will (see CB1-130, paragraph 102), and she asked Mr Quintal to “witness” Colleen’s signature on those documents. Mr Quintal applied his initials on Exhibit 5. Ms Coleman says that Mr Quintal did not know what the documents were when he “witnessed” either of Colleen’s signatures: CB1-104, paragraph 121, and CB1-105, paragraph 123. Mr Quintal agrees with that but says that Ms Coleman said to him on the phone when making the arrangement to meet at Emery Beach (CB2-254, paragraph 5):

“I have needed to redo Colleen’s will - to make some adjustments.”

37. In the evening of 17 January 2015, Colleen was admitted to Norfolk Island Hospital and remained there until her death.

38. On 18 January 2015, Ms Coleman provided Ric with an envelope which Ric then took to Mr Brown where it was opened. There was a dispute about what was said by Ms Coleman to Ric when she arranged to deliver the envelope to Ric.

39. In the envelope was a stapled document containing:

1. a coversheet prepared by Ms Coleman with the words, “Norfolk Island Lawyers, Taylors Road, Burnt Pine, Norfolk Island 2899”, and phone numbers in the bottom right-hand corner (the coversheet to the Oklahoma Will had no such details);

2. Exhibit 5 with Mr Quintal’s and Ms Jackson’s initials or signature on it;

3. the powers page from the Oklahoma Will; and

4. the execution page from the Oklahoma Will.

These documents were stapled together by Ms Coleman, and it is this bundle of documents which is referred to as the Exhibit 5 Will.

40. Also in the envelope was the medical certificate from Dr Challender (on Ric’s evidence) or the medical certificate from Dr Metcalfe dated 2 July 2014 (Ms Coleman’s evidence): see CB1-105, paragraph 132.

41. On 18 January 2015, Ms Coleman wrote an email to Ms Drayton in which she said:

“Colleen McCullough’s health is very poorly (sic) … Are you interested in acting in her estate if it becomes necessary and applying for the grant of probate (see attached) ?

I have suggested Colleen’s husband consider you but I’m not sure whether it would be required soon or in the much longer term.”

to which Ms Drayton replied that she was happy to be involved (CB2-73).

42. On that same day, Ms Coleman wrote an email to Ric (CB2-73) saying:

“I don't mean to pre-empt arrangements when it is unnecessary but below appears a feasible option for you (see both emails).

I've extracted and attached the section from the legislation as to legal costs associated with applying for a grant of probate.

I hope you can ease Colleen through this difficult phase of her life, so that it is as harmonious as possible for all involved.”

The reference to the emails included her email to Ms Drayton (set out in [10(41)] above) which was attached.

43. On 29 January 2015, Colleen died at Norfolk Island Hospital. The cause of death was stated to be renal failure and diabetes.

44. On 6 February 2015, Ric sent an email to the Plaintiff attaching a copy of the Exhibit 5 Will which he had been given by Ms Coleman. He also gave a copy of the same document to Mr Merlino.

45. On 11 February 2015 Ms Meredith Paton, the solicitor on record in these proceedings for the Plaintiff but who also at one point in the history of this litigation acted for the Foundation, wrote to Ms Coleman asking her for the original will and Ms Coleman’s files. Ms Paton also wrote to Mr Brown (see Exhibit 2) asking him to deliver to Ms Coleman what Ms Paton described as “the Original Will held by him”, which Mr Brown did. Ms Coleman had also emailed Mr Brown referring to arrangements to enable her to collect “the security packet that I handed to Ric Robinson on Sunday 18 January 2015”: CB1-262.

46. Ms Coleman, having obtained back from Mr Brown the Exhibit 5 Will that she had delivered to Ric on 18 January 2015 using the powers page and the execution page, reassembled what had been the Oklahoma Will. She then delivered the reassembled Oklahoma Will to Ms Paton on 25 February 2015 together with (what she says) her file in the matter, including Exhibit 5 and Exhibit 6.

47. On 1 June 2015, a Statement of Claim with the Foundation as Plaintiff was filed in this Court. By that Statement of Claim, the Foundation sought probate of the Oklahoma Will. The Statement of Claim also contained the following paragraphs:

“9.    In or about October 2014 an amended the first page of Will substituting the defendant for the University of Oklahoma Foundation Inc as the sole beneficiary, not bearing the pagination "1 of 1", was signed by the deceased and initialled by Helen Jackson. Another first page of the Will was initialled by the deceased.

10.   The Plaintiff says that with rapidly deteriorating health, blindness resulting from macular degeneration, inability to walk or get up out of bed without the assistance of the defendant, totally reliant upon the defendant, that the influence of the defendant over the deceased was such that the deceased was not a free agent in October 2014, the marking of the amended first pages was not of the deceased's own volition and at that time she had no testamentary intention to revoke or amend the will made 12 July 2014.”

Ms Paton says she drafted that Statement of Claim.

48. When the Plaintiff resumed her role as executor of the Oklahoma Will, a fresh Statement of Claim was filed and it made no reference to the Exhibit 5 Will (or Exhibit 6).

49. As at the date of Colleen’s death Colleen left some assets in New South Wales, namely, some artwork, cloth and an edited manuscript for one of Colleen’s books, said to be worth $18,000 (see CB1-418 and CB1-58), and there is agreement between the parties that these assets provide this Court with jurisdiction to grant probate or letters of administration in respect of any of the wills that are in contest in this case.

11. Another matter on which there is no dispute is the ill health of Colleen. As at mid-2014 Colleen suffered from diabetes, osteoporosis, she had very poor eyesight (as a result of macular degeneration) and had renal failure. She had had, sometime before mid-2014, a stroke, or several strokes, and suffered from depression. On 14 January 2015, Dr Challender described her in a letter to the District Nurse (see Exhibit Q) as:

“.. seriously ill with advanced renal failure [and] recurring [transient ischemic attacks].

Her mobility is now very limited [and] she’s become incontinent.

She has some nursing help but needs further assistance in many ways.

Her husband is exhausted…”

There is no doubt that, by mid-January 2015, Colleen was not able to read at all. There is some dispute about the degree of Colleen’s mobility between October 2014 and January 2015, but she was in need of assistance for many activities during that period and became increasingly dependent on a wheelchair.

12. As I have noted Dr Challender’s certificate of 14 January 2015 stated (at CB2-204), inter alia, that:

“… she’s sane, rational and completely able to make well considered decisions… I’ve seen absolutely no sign that she’s under any sort of physical or emotional distress.”

13. Dr Challender said that, during his visit on 14 January 2015, Colleen seemed much more subdued than she had been when he last saw her (in December 2014) and that she spoke quietly: see T456.45-457.13 and T458.9-12.

14. There is another medical record – Exhibit 9. It records consultations of Colleen with Mr Tony Gallagher, a mental health counsellor connected with Norfolk Island Hospital, dated 30 December 2014, 6 January 2015 and 13 January 2015. I shall set out the notes in full because not only are they relevant to Colleen’s ability to communicate, but also because they contain other material of potential relevance to the competing contentions advanced in this case:

Progress notes – Colleen McCullough-Robinson, D.O.B. 01/06/1937

Tuesday December 30 2014 15:02:12

Counsellor – Tony Gallagher

HOME VISIT: Colleen presented with significant word finding difficulties today making discussion quite difficult. This is a significant change since I first began home visiting on 2/12/14. Despite this Collen was able to communicate that she is missing Nicky’s (one of the regular carers) presence ( she is returning from NZ on 11 January) and is finding Rick to be less patient with her, of late. When nicky is present Colleen feels more stimulated and engaged with. Discussion with Rick revealed that Colleen has been waking every one to two hours a night regularly and that her ability to walk has been quite poor; consequently Rick has been experiencing significant sleep disturbance- he speculated whther Colleen has experienced a further stroke of some kind. I suggested I would speak with Dr Challender and that a further medical review may be in order. Tony Gallagher

6 January 2015 I/V E Colleen:

Colleen admitted to NIHE on 4 January due to vague reasons, but in as much as to give Rick, a break. Her renal system is failing [and] she has declined Tx. Colleen expressed matter-of-factly – she “thinks she” “on the way out”, she is feeling anguish that Rick is not a talker [and] that he is jealous of Nicky, her carer. Colleen has no family left – Her brother was last of her ‘blood’ to have passed away thirty years ago. She described her word finding difficulties as ‘maddening’. She is expecting to go home tomorrow [and] I will visit again next Tuesday. Tony Gallagher Mental Health Counsellor.

13 January 2015. Home Visit:

Noted in medical director that Dr Challender has recorded Colleen is experiencing bladder irritability [and] night frequency.

Met by Rick at door. In Colleen’s company he asked that I read out his [and] Colleen’s recently drawn up wills to Colleen so an independent person can validate to Colleen what is stated therein. This done [and] Colleen acknowledged she understood [and] comprehended the contents. Rick has been advised by solicitor Colleen’s testamentary capacity be proved by M.O. agreed to discuss same with Dr Challender.

Colleen did not present with such significant word finding difficulties today – conversation was appropriate, what was noticeable was Colleen’s body slumped in chair [and] difficulties she had with eye-hand co-ordination, requiring assistance to drink. She spoke of her body being in ‘decline’ [and] being close to ‘the end’. She is pleased Nicky has returned. Nicky commented on how much Colleen has deteriorated. Colleen keen to have Sue Trembath visit whilst I’m on leave for next 3 weeks. Rick said Colleen slept right through last night. Discussed circumstances with Dr Challender. Tony Gallagher.

15. I should note too that:

1. Exhibit O records a conversation (at page 4) with Dr Schiavone, with apparently (“D/W” semble “discussed with”) a ‘caregiver’ for Colleen on 22 November 2014, in which the caregiver reported that:

“feels like severe depression

Husband was having an affair, marital discord

Says she wants to die.”

2. Exhibit O (at page 4) also contains Mr Gallagher’s note of his first consultation with Colleen on 24 November 2014, where he noted:

“Colleen linked her macular degeneration as primary cause of her feeling depressed. Perceives she has been depressed for at least past 8 to 9 months.”

16. Mr Morrissey made it clear that it is no part of the Plaintiff’s case that Colleen did not on 17 January 2015 meet the requirements for testamentary capacity as established in Banks v Goodfellow (1870) LR 5 QB 549 (or inferentially at any earlier time either): see T527.1. It follows that there is no dispute that Colleen had the capacity to understand the nature of the act of making a will and its effects, an understanding of the extent of the property the subject of any will made by her and the capacity to comprehend the moral claims of potential beneficiaries: see Carr v Homersham [2018] NSWCA 65 at [5] per Basten JA (with whom Leeming JA concurred at [128]).

17. Other matters which were not in dispute were:

1. The fact that, apart from three three-year terms in the Norfolk Island Legislative Assembly, Ric has not been employed or worked in any business. He received, in effect, $500 or $600 per week for his needs out of the joint account held by Colleen and himself. Colleen was, in all practical terms, the breadwinner of the household.

2. The fact that Ric had taken a mistress in 2010, which continued until 17 July 2014 when he moved back in with Colleen. That Colleen had become aware of this relationship before June 2014 is clear (see CB1-305, paragraph 5), but when he told Colleen about it is in dispute.

3. That, as at June 2014, Colleen and Ric’s finances were in a poor state, at least in terms of liquidity.

18. The contentions of the Plaintiff, as set out in the Plaintiff’s closing submissions (“PCS”) and Mr Morrissey’s oral submissions, have these elements:

1. The Oklahoma Will is a valid will.

2. The Oklahoma Will is the last will and testament because neither Exhibit 5 nor Exhibit 6 have been shown to have been signed (or initialled) by Colleen with testamentary effect.

3. Exhibit 5 and Exhibit 6 were just “failed attempts” at a will by Colleen and should not be viewed as representing Colleen’s testamentary wishes. There is, grafted onto this, a number of contentions of the Plaintiff concerning Ms Coleman and her conduct:

1. Ms Coleman saw herself as Colleen’s protector.

2. Ms Coleman never saw Colleen alone and felt that Ric was pressuring Colleen (and herself) and that he seemed to control Colleen.

3. Colleen did not provide instructions to Ms Coleman to make a new will.

1. Colleen “did not demonstrate any testamentary intentions or volition”.

2. Ms Coleman did what she did as a ‘decoy’ to fool Ric into thinking that Colleen had made a will even though she had not.

3. Colleen could not sign her name and the will making on 24 October 2014 was “abandoned” by Colleen.

4. Ric does not provide any evidence that Colleen intended either Exhibit 5 or Exhibit 6 to be her will and Ric “denies [Colleen] made the attempts to sign” on 24 October 2014.

5. Neither Exhibit 5 nor Exhibit 6 conform with the requirements of s 6 of the Succession Act 2006 (NSW) (“the Act”). That section, and s 8 of the Act, are in the following form:

6 How should a will be executed?

(cf WPA 7 and 9)

(1) A will is not valid unless:

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.

(3) It is not essential for a will to have an attestation clause.

(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

(5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity.

(6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity).

8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(cf WPA 18A)

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State.

4. There are suspicious circumstances, or circumstances of undue influence, namely:

1. Ric exerted pressure on Colleen and Ms Coleman;

2. Colleen was in declining health around October 2014 and, in January 2015, was seriously ill;

3. Ric knew about the Oklahoma Will in October 2014, although he had said in his affidavit of 8 October 2016 that he only became aware of the Oklahoma Will in March 2015 and it should be inferred that he thought that to admit that he knew of the Oklahoma Will would have meant that there were suspicious circumstances; and

4. that his motive for pursuing the Exhibit 5 Will amounts to suspicious circumstances.

5. That if there was an Exhibit 5 Will (or if Exhibit 6 is a testamentary document) then that will or testamentary document was revoked by Exhibit D which, it is asserted, is a codicil within the meaning of s 15 of the Wills Act 2012 (Norfolk Island) (“the Wills Act”).

19. It should be noted that, contrary to [18(3)(g)] above, Ric does not deny that Exhibit 6 was signed or initialled by Colleen on 24 October 2014. It is Exhibit 5 that he says he saw Colleen sign on 17 January 2015.

20. It should also be noted that, in relation to [18(4)], the Defence to Cross-Claim filed by the Plaintiff asserted pressure and ill health issues in January 2015, not October 2014, and it was not amended after the Amended Defence and Cross-Claim were filed by Ric: see [25] below. The matters referred to in the Defence to Amended Cross-Claim (filed on 10 April 2017) refer to many matters, namely, that as at January 2015 Colleen was housebound and isolated apart from Ric and her carers, she depended on Ric for assistance with daily living activities between 5pm and 9am weekdays and weekends, she was in ill health, including the effects of advanced diabetes, fatigue, blurred vision, thirst and dehydration, she had severe vision impairment, was bedridden or chair bound, she was unable to make or receive phone calls and was not fully ambulatory. The Defence to Amended Cross-Claim also alleges that:

1. Ric was ‘instrumental’ in causing Exhibit 5 to be made in his favour;

2. there is no rational reason why the Foundation was excluded from the Exhibit 5 Will;

3. Colleen did not have the opportunity to reflect upon any independent advice;

4. that Colleen was not capable of reading Exhibit 5;

5. Ric took advantage of Colleen’s poor health, isolation, fatigue and her dependence upon him “so as to dominate, overbear and overburden her”; and

6. Ric influenced Colleen such that she was not a free agent and was not acting of her own volition.

21. Ric disputes the Plaintiff’s assertions, and his case is that:

1. in October 2014 and or in January 2015 Colleen, with the involvement of her solicitor (Ms Coleman), gave instructions to Ms Coleman to prepare a will removing the Foundation as the sole beneficiary and leaving her entire estate to Ric which Ms Coleman did and which will Colleen did sign or initial in respect of Exhibit 6 on 24 October 2014, and in respect of Exhibit 5 on 17 January 2015 or 24 October 2014, as an expression of her testamentary intention;

2. there is no evidence of coercion or pressure by Ric on Colleen and that Ms Coleman’s claim that she had dual instructions from Colleen, or that she did what she did in order to protect Colleen and or keep her safe, is not supported and should not be accepted;

3. Exhibit D does not and cannot constitute a codicil with any effect under s 15 of the Wills Act; and

4. even if Exhibit D did constitute a codicil, it was revoked by the Exhibit 5 Will made on 17 January 2015.

22. It will be apparent from what is recorded above as the matters which are not factually in dispute that this is a most unusual case. As for what is factually in dispute, there is not only a significant divergence of accounts as to what was said and done but there are many contradictions, or apparent contradictions in varying degrees, in what has been presented to support the parties’ respective positions. If the track of the truth in this matter is to be found, it is narrow and poorly lit.

23. There are items of evidence which seem to have been ignored or treated as less significant than they might appear to be. Thus for example, in the PCS at paragraph 24(h), there is the contention that Ms Jackson was not even present on 17 January 2015 at Out Yenna (and therefore could not have witnessed Colleen sign Exhibit 5 on that day) yet the power of attorney said by Ms Coleman to have been executed (after a fashion) by Colleen on 17 January 2015 bears Ms Jackson’s signature as a witness on that date. Ms Wright says that the only will of which she was aware of was the Oklahoma Will yet she was the recipient of Ms Coleman’s email of 25 October 2014 and attached letter with invoice of 25 October 2014 from Ms Coleman to Colleen and she read aloud to Colleen letters addressed to her: see CB1-443, paragraph 11. Ms Coleman said something in a phone call to Ms Paton on 11 February 2015 that led Ms Paton to write the “original Will” is with Ric: see Exhibit T (Exhibit T being a typescript of Exhibits R and S). That note was tendered by the Plaintiff only long after Ms Coleman had concluded her evidence. It is consistent with the letter Ms Paton wrote to Mr Brown (see Exhibit 2). Diary notes of Ms Coleman for 21 and 24 October 2014 and the letter and email of 25 October 2014, which I have set out above at [10(26)] and [10(27)], were not produced to the Defendant until two days before the hearing. Ric said that Ms Coleman’s assertion that he had given Ms Coleman copies of the 2005 wills in mid-October 2014 was “a fabrication”, but Ms Coleman’s notes record that he did give her those wills and that she expressed the view that she could not utilise them: see CB1-415. Ms Jackson, who in her affidavits had given clear evidence about matters relevant to the date and manner of witnessing the Oklahoma Will and the Exhibit 5 Will, seemed to have lost all memory of those matters during cross-examination; even in respect of 17 January 2015, the last day that she worked for Colleen (see T408 and T438.48-439.1).

24. Ric asserts that Colleen had testamentary capacity (an assertion that, as I have noted, is accepted by the Plaintiff) and was able, albeit with difficulty, to sign Exhibit 5 on 17 January 2015 and did so on that day (an assertion strongly refuted by the Plaintiff) and that, based on Ms Coleman’s evidence, Colleen initialled Exhibit 6 on 24 October 2014 (an assertion accepted by the Plaintiff, but with the rider that it was merely “an attempt”).

25. I have set out the issues as they emerged from the hearing, but I need to make reference to several important changes that occurred immediately before or at the hearing. During the weekend before the hearing was due to start the Plaintiff’s solicitor (Ms Paton) wrote to Ric’s solicitor providing him with the letter dated 25 October 2014 (set out at [10(26)] above), the email of the same date (set out at [10(27)] above) and the diary notes of Ms Coleman, all of which she had had in her possession since February 2015 and which had not been annexed to any of Ms Coleman’s previously filed affidavits. Ms Paton, in her affidavit of 22 May 2018, deposed to the fact that she could not recall having seen the letter and or email and two diary notes before and accepted that they had not been produced under a Notice to Produce issued by Ric’s solicitors. As a result of the late production of that letter, Ric sought leave to amend his Defence to rely on Exhibit 6 (and Exhibit 5 as a testamentary disposition made on 24 October 2014 and, alternatively, on 17 January 2015) which leave was not opposed. Until then, Ric’s case relied upon the Exhibit 5 Will as a will made in January 2015. The Plaintiff then sought leave to assert that the Exhibit 5 Will and or Exhibit 6 (if valid) were revoked by Exhibit D. The Second Further Amended Statement of Claim, the Further Amended Cross-Claim, the Defence to the Second Further Amended Statement of Claim and an Amended Reply were filed in Court on 23 May 2018.

26. A second matter of significance is that, in his case, Ric had challenged the validity of the Oklahoma Will and asserted that, if the Exhibit 5 Will was not a valid will, the Oklahoma Will was not a valid will either and that Colleen’s 2005 will (the authenticity of which was never in doubt) was Colleen’s last will and testament. One of Ric’s contentions about the Oklahoma Will was that it appeared to be a composite document and it also, on his expert’s evidence, contained initials of Colleen on the dispositive page that were forged. Once Ms Coleman explained how she had assembled, disassembled and reassembled the Oklahoma Will and the Exhibit 5 Will, expert opinion concerning its history had reduced significance and Ric accepted at the hearing that the Oklahoma Will was a valid will expressing Colleen’s testamentary intentions as at 12 July 2014.

27. It will be apparent that the position of the Foundation was different to that of the Plaintiff since the Foundation, whilst accepting the existence of the Exhibit 5 Will (described as the October Will), asserted that it had been obtained by undue influence over Colleen by Ric. The Plaintiff’s position is that, first, there never was any will or testamentary instrument created later than the Oklahoma Will and, second, that if there was it was obtained as a result of coercion or in suspicious circumstances. There seems to be a significant tension between a case which asserts that whatever was done by Ms Coleman was merely a pretence designed to fool Ric and one which says that Colleen meant to make a new will but was coerced by Ric to do so.

28. I turn now to describe the broad factual matters that are in dispute:

1. Whether Ms Coleman did receive instructions from Colleen on 21 October 2014 to prepare the Exhibit 5 Will.

2. Whether Colleen initialled Exhibit 6 and signed Exhibit 5 on 24 October 2014 intending those documents to have testamentary effect.

3. Whether Colleen, in January 2015, gave instructions to Ms Coleman that she wanted Ric to have her entire estate and signed Exhibit 5 on 17 January 2015 intending that document to have testamentary effect.

4. The precise circumstances of the signing by Colleen of Exhibit 5.

5. Whether Ms Jackson initialled Exhibit 5 as a witness to Colleen’s signature on 17 January 2015 (as Ric asserts) or on 24 October 2014 (as Ms Coleman asserts).

6. Whether Ms Coleman understood her instructions from Colleen in January 2015 to be that she was to prepare the Exhibit 5 Will and give it to Ric or not. This issue links to several layers of conflict in the evidence, tied to both the Exhibit 5 Will and Exhibit 6.

7. The state of Colleen’s marriage to Ric as at October 2014 and January 2015. The relevance of this is that the Plaintiff’s case is that it should be concluded that the state of their relationship was so dire that Colleen would not have wished to leave Ric any part of her estate and includes the question of whether Ric was, in October 2014 and January 2015 by means of coercion or abuse or similar conduct, effecting control over her so as to deprive her of her volition.

Credibility of Witnesses

29. I will deal first with the credibility of the witnesses in this case.

Ms Drayton

30. Ms Drayton was not required for cross-examination and there is no reason to doubt the veracity of her evidence, which related to Colleen’s execution on 24 July 2014 of the revocation of the Norfolk Island power of attorney previously granted to Ric by Colleen and the fact that Colleen wanted to complete that document before Ric returned home.

Ms Anthony

31. Ms Anthony gave evidence:

1. of what Colleen said to her in early July 2014 as to why she was making a will in favour of the Foundation (CB1-66, paragraph 66), namely:

“I’ve left Ric. I’ve kicked him out for good this time. He has a mistress! Selwa, I don’t know where all the money has gone. I can’t even afford to have a night time carer. I can’t say anymore over the phone and I don’t trust the carers that are looking after me.”

2. that Colleen told her about the fact that she was making a new will which would leave Ric ‘nothing’, with everything going to the Foundation. Colleen also said that she did not know where her money had gone. Ric “has spent it all” (see CB1-67, paragraph 76); and

3. that, very shortly after Colleen’s return to Norfolk Island in mid-July 2014, Ms Anthony rang Colleen and Ric answered the phone, passed it over to Colleen and there followed a conversation in these terms:

Ms Anthony:   “I thought Ric wasn’t living there anymore?”

Colleen:          “I have to take him back as I can’t afford a night time carer and he needs the money. That’s the arrangement.”

32. It was made clear that Ms Anthony is running this case with the support of the Foundation (see, for example, T419.32-36). This is unsurprising since it is the sole beneficiary of the Oklahoma Will. Ms Anthony clearly regarded Colleen as her friend and not Ric (see CB1-68, paragraph 81), but she denied that she had any ill will towards him (see T40.15-45). Even allowing for some animosity towards Ric, the evidence (set out above) is consistent with other evidence and the fact of the Oklahoma Will and I accept it.

33. There is, however, a question going to Ms Anthony’s conduct after Colleen died which has a bearing on the question of costs. I think Ms Anthony made it clear that she regarded her role as protecting and supporting the Oklahoma Will because she believed they were Colleen’s last wishes. Whether that view was mistaken or wrong is not really a question of credit, even more so having regard to the fact that she has at all times been represented by a solicitor, Ms Paton, by whom she has been guided. I shall say more about this issue in the context of the costs issue.

Ms Coleman

34. Ms Coleman was admitted as a solicitor in New South Wales in May 2007. She practised as a solicitor on Norfolk Island from 2011 until 2014. She has practised in Victoria as a barrister from 2015 and retains a practising certificate in that state. She has practised as a barrister in New South Wales for some of that time, but says that she no longer holds a practising certificate in New South Wales. She has, she said, also performed work as an extra in legal shows: T52.6 and T52.46. She knew of Colleen but did not know her personally until she was contacted by Ms Wright in June 2014.

35. There are many aspects of Ms Coleman’s evidence which impact upon her credibility. First, there are the following points:

1. She made assertions to justify her conduct which could not be sustained; for example, that there was pressure from an unrelenting number of emails from Ric’s solicitor, Mr Brown (see CB1-127, paragraph 79), when the chain of correspondence shows that, of 14 emails over a three-day period, six were from her and, of the remainder, two were answering specific questions of hers and two asked, “Is there anything further that you need?”: see Exhibit 1. She admitted (at T135.10) that what she had said in her affidavit was a gross exaggeration.

2. She asserted that Ric had been evasive in giving her the medical certificate from Dr Challender. Cross-examination revealed that this was not an honest account: see T147.27-150.21. The account did not make sense because the medical certificate was very helpful to Ric and not at all something that he needed to hold back or be evasive or reluctant about. It is somewhat revealing that the only part of the certificate that Ms Coleman reproduced in her affidavit (see CB1-103, paragraphs 108-109) was the rather unusual last sentence – if that is all the medical certificate had said, one could understand why Ric might have been evasive. Ms Coleman said that she could not understand the contents of the certificate but, after extensive cross-examination, she admitted that it was, apart from the last sentence, clear: see T138.27-142.25.

3. She frequently failed to answer the questions asked of her: T59.42-48, T71.23-72, T77.37-49, T82.15, T93.46-94.4, T99.49, T101.45-102.29, T104.30-40, T107.16-31, T109.16-25, T111.24-113.49, T136.10, T137.20, T142.34-35, T144.43-45, T163.39-46, T167.13-17.

4. She described Colleen’s statement to her of “Fuck Oklahoma”, noted in her diary note of 9 January 2015 (see CB1-202) but not mentioned in the body of her affidavit, as having been said “deliriously” but her attempted justification for that description was unconvincing. She then proffered information in the witness box as an explanation for why Colleen said that: see T106-108. Ms Coleman said she was not sure if that was a reference to the Oklahoma Will but seemed to accept it was consistent with the contents of Exhibit 5 and Exhibit 6: T107.50-108.6. That statement by Colleen, made in the context of a discussion about wills, was potentially one of considerable importance in a case in which the Plaintiff asserts that Colleen had no wish to change her will back to giving her estate to Ric rather than to the Foundation.

1. She said that the letter of 25 October 2014 to Colleen would normally go to Mrs Quintal (T68.36) but she had in fact sent it to Ms Wright.

2. She sent an email to Ms Drayton that, on its face, was entirely inconsistent with her claim that the Exhibit 5 Will she had given to Ric was merely a decoy and, in cross-examination, she provided no meaningful explanation about this: see T252.49-258.5.

3. The attempt to suggest that, in late October 2014, Colleen was exhibiting what appeared to be bruising and was neglected because Ms Wright was in New Zealand was seriously undermined by the fact that Ms Wright was not in New Zealand in October 2014 and was, in fact, working as Colleen’s carer during that time. Ric gave unchallenged evidence that Colleen had a condition causing discolouration of the skin: T360.42. Ms Coleman’s affidavit was clearly intended to give support to her claim that Colleen “did not appear to have the testamentary capacity or volition” (see CB1-99, paragraph 80) on 21 and 24 October 2014 and support for her claim that Ms Jackson was working at Out Yenna at that time and, hence, signed Exhibit 5 as witness on that date. Ms Coleman said (at T64.20) that she regarded the bruising as from anaemia, or a blood condition or a fall and that Colleen appeared to be neglected at that time. Ms Coleman agreed (at T73.39) that Colleen’s condition in October 2014 was nowhere near as bad as it was in January 2015. As I have already noted, lack of testamentary capacity at any time is not now asserted by the Plaintiff.

4. She referred in her affidavits to conduct by Ric in the most general but negative terms but was unable in cross-examination to provide any concrete examples of what he had said or done to her observation to warrant the description: T97.35-41, T105.35, T127-128, T130, T135, T147. One example of this is that, to her observation, “Ric’s approach was one of sustained control and coercion” (CB1-108, paragraph 145) and another, “Col was being put through a process” (and see T92-94), but in support of which assertion she could provide no examples: see also, in particular, T103-105, T146.40-31, T162.40-163.6. Another example of this kind of evidence by Ms Coleman, but relating to the period prior to the Oklahoma Will, is found at CB1-95, paragraph 51, where she says, rather cryptically, that Colleen said to her “in a rhetorical way on a number of occasions… [Ric] controls me psychologically”.

5. The cross-examination of Ms Coleman at T95-T100 focusses on her correspondence with Ric on 9 and 10 January 2015 and her failure in her email to refute his comment in his email: “You have told me that Col's will leaves her estate to me”, and is another example of the problems with Ms Coleman’s evidence.

36. There are these critical aspects of Ms Coleman’s evidence:

1. That Colleen did not really give her instructions to change her will by revoking the Oklahoma Will and giving her estate to Ric or, alternatively, that she had received dual instructions from Colleen.

2. That when Colleen placed her mark on Exhibit 5 and Exhibit 6 (both on 24 October 2014), these were just “failed attempts” and Ms Coleman treated them as such. These documents were designed to placate Ric and keep Colleen “safe”. Ms Coleman described the draft documents (of Exhibit 5 and Exhibit 6) as ‘a piece of paper’ (T36.35) but then agreed it was a new will (T56.48).

3. Ms Coleman described herself as performing a stop-gap function: see CB1-99, paragraph 81.

4. That, although she put together the Exhibit 5 Will on 17 or 18 January 2015, there was no will at all and she was doing what she was doing to placate and appease Ric so that Colleen (Ms Wright and herself, see CB1-131, paragraph 112) would be ‘safe’ and she never regarded that document as Colleen’s will.

5. That Colleen did not sign Exhibit 5 on 17 January 2015 and that she had no discussions with Colleen about executing a new will on that date; and, indeed, Ms Coleman had not gone to Out Yenna for any other purpose than the execution of the power of attorney in favour of Ms Martinez.

6. That when she reacquired custody of the Exhibit 5 Will in February 2015 she took parts of it and linked them up with parts of what had been the Oklahoma Will that, on her evidence, she had always treated as Colleen’s last will.

37. Ms Coleman was confronted with a number of documents and actions which contradicted her version of events:

1. Her letter of 25 October 2014 to Colleen (CB1-414).

2. Her invoice of 25 October 2014 to Colleen (CB1-200-201).

3. Her emails to Mr Brown and Ric.

4. Her emails of 18 January 2015 to Ric and Ms Drayton to which I have previously referred.

5. The fact that she had Ms Jackson and Mr Quintal witness (or purport to witness) the signature of Colleen on Exhibit 5.

38. Ms Coleman annexed diary notes to her second affidavit for 9, 16 and 17 January 2015. She did not annex notes for 21 and 24 October 2014 until her affidavit of 22 January 2018, which notes she described as “contemporaneous”: see CB1-408, paragraph 14. Ms Coleman agreed that the notes for 16 and 17 January 2015 were not made on the dates which they bear and were quite possibly prepared at the same time. The date that she prepared them was not identified by her. There are parts of the notes for 21 and 24 October 2014 which, if contemporaneously made, support her version of events, namely, that Ric showed her the 2005 wills on 21 October 2014, that Ric was present at both conferences with Colleen on 21 and 24 October 2014, that Ms Coleman did not see Colleen alone, that Ric was present and that on 21 October 2014 she felt she needed to “appease” him. The note for the 21 October 2014 contained the words, “Wants same executors so that no suggestion of coercion”. It is not clear from the note who said this but, in her email of 9 January 2015 (at [10(31)(b)] above), Ms Coleman said the same thing and in her affidavit (CB1-97, paragraph 66) she said that she suggested that the executors be Ms Anthony and Mr Merlino. The note of 21 October 2014 (CB1-415) has the following at the end:

“Col can’t go ahead, left up in the air. Ric saw problem, can’t write, can’t think, express clearly (Col).”

Ms Coleman’s note for the conference of 24 October 2014 (part of CB1-416) says:

“Conference with CMcC & Ric.

Noted Col unable to write.

No witness on arrival.

Query as to availability of

- Helen Jackson

- Lewis Quintal.”

39. Ms Coleman’s note of 21 October 2014 does not make any reference to discussion about a letter or estate planning, matters which are mentioned in the invoice of 25 October 2014. Ms Coleman’s note of 24 October 2014 does not state that Colleen signed or initialled any document or attempted to do so. The note does not record that Ms Jackson witnessed Colleen’s signature. Without more the notes would suggest that nothing was signed or attempted to be signed by Colleen on 24 October 2014, yet Ms Coleman’s evidence is that both Exhibit 5 and Exhibit 6 were signed or initialled and that Ms Jackson witnessed Colleen’s signature on Exhibit 5 on 24 October 2014. The notes of 21 and 24 October 2014 do not indicate that Colleen did not say much, or was virtually mute or non-communicative, in contrast to Ms Coleman’s affidavit (at CB1-97, paragraph 68, although see paragraph 66 which describes Ric and Colleen appearing to express a joint wish that Ric be the sole beneficiary of Colleen’s will and Ric expressing a desire to also be its executor which Colleen supported). Ms Coleman said in cross-examination that Colleen spoke very little: see T63.25.

40. There are two diary notes of 9 January 2015 with a fair degree of overlap. The notes are somewhat contradictory because they record that Colleen and Ric were “lovey-dovey”, that Colleen told Ms Coleman, “Fuck Oklahoma”, and that Colleen instructed her to give Ric “what he wants” – but the notes also state that Ms Coleman could not get “clear instructions from Col”. A note of 9 January 2015 records that Ms Coleman said that she would need a medical certificate as to the capacity of Colleen before she could be involved in preparing ‘mirror wills’ (also known as ‘mutual wills’), which seemed to be the matter under discussion. A note of 9 January 2015 also records a query of Ms Coleman, “threatened?”, and records Col as “mute”: CB1-207.

41. Ms Coleman gave as the explanation for her letter to Colleen of 25 October 2014 the need to make Ric think that there was a will. She said that she believed that, although the letter was addressed to Colleen, it would be seen by Ric. The letter to Colleen was in fact sent to Ms Wright, whom Ms Coleman knew to be very close to Colleen, by the email set out at [10(26)] above. It was not suggested to Ric in cross-examination that he had ever seen or been made aware of that letter, and Mrs Quintal was not asked about it either.

42. Ms Coleman’s explanation for wanting Ms Jackson to sign the new dispositive page was “to satisfy Ric” (T176.16-19), and for her keeping the “failed attempts” was because they were a demonstration of the deterioration in Colleen’s capacity to write her name. Ms Coleman said she regarded them as “important documents” (T176.20). I note that, on Ms Coleman’s evidence, there was a total of three or four attempts by Colleen to sign her name on 24 October 2014 but only Exhibit 5 and Exhibit 6 were annexed to her affidavit or produced to the Court and I infer that there were no others.

43. Ms Coleman did not provide any plausible explanation as to why she had:

1. suggested Ms Drayton to Ric in connection with probate of Colleen’s will if Ric was not the beneficiary; and

2. written to Ms Drayton asking her if she would be willing to act for Ric for the purposes of probate of Colleen’s will.

see T252.26 - 257.27.

44. I did not find Ms Coleman’s explanation for the detailed letter of 25 October 2014 to Colleen and the contents of the invoice and email to Ms Wright convincing, but it becomes even less so when coupled with her email to Ms Drayton and the cross-examination of Ms Coleman concerning this.

45. Ms Coleman seemed to assert that she did not want to be involved in the will making exercise any further, although she had said that she thought in January 2015 that Mr Brown was going to sort out the mutual wills (T154.25) which would have meant that Colleen would have been in the hands of a solicitor who was clearly acting for Ric and Ms Coleman had told Ric that his solicitor could not act for Colleen. Her email to Ric and to Mr Brown seems to exhibit cooperation with them and not resistance to the process or abandonment of her client.

46. Ms Coleman claims that Ms Jackson was working at Out Yenna as a carer on Friday, 24 October 2014, because Ms Wright was away in New Zealand. In her affidavit, Ms Jackson denied that she was working at Out Yenna on that date – she said she was employed by Colleen from 24 June 2014 to 17 July 2014 and from 14 December 2014 to 17 January 2015: see CB2-230. In her oral testimony, Ms Jackson was extremely vague but thought she was not working at Out Yenna in October 2014: see [74] below. Ms Wright agreed that she (Ms Wright) was working at Out Yenna during weekdays in October 2014 and Exhibit 3 establishes that she was. Ms Coleman agreed that Ms Jackson would not have been working at Out Yenna if Ms Wright was there: T88.35-37.

47. Ms Coleman gave several explanations for her actions, including that:

1. she felt pressured. She said that, “between August 2014 and January 2015, it was becoming clear to me that Col was in an abusive relationship with Ric, and I needed to protect her interests whilst making sure she was safe, and Nikki and I were safe” (CB1-131, paragraph 112);

2. she was pressured by the incessant emails from Mr Brown and Ric; and

3. she wanted “out” of the role of solicitor for Colleen.

48. Ms Coleman’s evidence that she had become aware between August 2014 and January 2015 that Colleen was in an abusive relationship with Ric was not based on any observations of her own of Ric’s conduct but was based on, what she said, were observations of Colleen’s condition on 21 October 2014, to which I have referred (at [35(7)] above), and what she says she had learnt from letters typed by Ms Wright and given to her, she says, by Ms Wright in January 2015 (see CB1-108, paragraph 44, T113 set out below, and at T163.33-37). I shall set out later in these reasons an important segment of cross-examination relating to that but there was no evidence that Ric did anything to make Ms Coleman fear for her own safety or that of Ms Wright, as she asserted in her affidavit was the case (see CB1-131, paragraph 112, and see cross-examination at T146.40-147.39). Nor do either Ms Coleman or Ms Wright give any evidence of any observation by them of conduct of that nature by Ric directed toward Colleen. Ms Coleman’s assertion of a belief that Colleen had died before her time, in effect, because of the constant pressure exerted upon her by Ric (see CB1-105, paragraph 131) is an extraordinarily strong statement for someone who claimed that she had no hostility towards Ric (see T70.19). Further, the suggestion that any issue concerning the will is what brought on Colleen’s early death is inconsistent with the medical evidence generally: see Exhibit O. Ms Wright’s evidence (at CB1-350, paragraph 45), if accepted, points to Colleen’s loss of appetite for life before January 2015 which is when the issue of a new will was next raised after October 2014.

49. At paragraph 146 of her first affidavit (at CB1-108), Ms Coleman said:

“From the time Col and I spoke in July 2014, she instructed me to “Give Ric what he wants” but she also said to me:

“Don’t give him what I want.”

This dual purpose she instructed me to fulfil came with inherent conflicts. I colluded in Col’s dual purpose.”

50. There is no file note of Ms Coleman in relation to that instruction. It is a very unusual ‘instruction’ and the further strange thing about it is that, on Ms Coleman’s evidence, it was first said at a time after Colleen had made a new will in Sydney leaving Ric nothing and where no replacement will was in contemplation. Cross-examination of Ms Coleman demonstrated that “Don’t give him what I want” and that her instructions were to discontinue (T62.10-29) were not words used by Colleen but, rather, were Ms Coleman’s claimed ‘take’ in contrast to what Colleen had actually said to her: see T114-117.7 (reproduced below), and see also T106-108 and T112-114.

51. Ms Coleman did not include, in any of her first four affidavits, the letter of 25 October 2014 to Colleen and covering email (sent to Ms Wright) although she did include the invoice of 25 October 2014: see CB1-200.

52. Ms Coleman did not give a full account in her affidavits of the critical conversations with Colleen; for example, as I have mentioned, her note that Colleen said “Fuck Oklahoma” (see CB1-202), although attached to her affidavit, was not referred to in the body of her affidavit. When she was asked about this in cross-examination, she said that Colleen had said this “deliriously” and then when cross-examined further she said that Colleen had expressed irritation, at some unspecified time, at the University of Oklahoma for reasons connected with its unwillingness to accept freight charges for Colleen’s papers. She also did not explain the context of the comment, “What we are doing is for your benefit”, on 21 October 2014. She does not give evidence of a conversation with Ric on 17 or 18 January 2015 in which she explained to Ric why she was giving him the envelope on 18 January 2015 or describing to him what it was she was giving him.

53. Ms Coleman says (at CB1-247, paragraph 50):

“Val and Nikki left "Out Yenna" after the power of attorney document was finalised. I left shortly afterwards. I returned to my law practice office and spoke to Nikki on the phone. I called because I was concerned about feeling forced into making arrangements directed by Ric about Col's affairs, and felt pressured by him because he wanted the mutual wills completed.”

Ms Coleman does say that Ric was anxious on 17 January 2015 about having the will done but her evidence is that Exhibit 5 was not signed on that date and that there was no discussion concerning a will by Colleen, other than her saying to Ric on that day, “I cannot endorse the signing of mutual wills in circumstances where I cannot get adequate instructions from, or provide appropriate advice to, Col” (CB1-103). Ms Coleman had, on her own evidence, not been forced into making any arrangement, let alone arrangements, directed by Ric. Also Ms Wright says that Ms Coleman came to Ms Martinez’s house after she had left Out Yenna and met her and Ms Martinez there (CB1-352-353, paragraph 56), rather than merely speaking to Ms Wright on the phone.

54. Mr Morrissey, in dealing with the evidence of Ms Coleman, said in closing submissions (at T486.28-45):

“I need to at some stage, and I may as well do it now, address the, shall I say, the role of Ms Coleman, because much of this hearing has been focused on that and, with respect, my submission is that we, perhaps, shouldn't be distracted too much by Ms Coleman. She had a central role to play. She was the will drafter. She's not the witness of the plaintiff. She's not part of the plaintiff family. She's not ‑ didn't have any relationship with the plaintiff. The plaintiff, as far as we know, she'd never met the plaintiff until that conference at Ms Peyton's chambers on 25 February 2015, after Dr McCullough's death.

She has taken what one might describe as an unorthodox approach to matters in this case. No doubt Mr Murr will put it in stronger terms, no doubt about that, and your Honour may well, even in a judgment, but, it was unorthodox. She seems to have ‑ and this is our submission ‑ and it is just a submission ‑ she seems to have taken on or saw herself as partly in the role of a protector. Protector, that's the only neutral word that I use. So not only was she a legal representative, but she was the protector and she seems to have seen herself having a dual role, a legal representative and a protector and that seems to have been the situation.

and (at T487.10) he submitted that:

“Ms Coleman seems to be a complex woman. She was an emotional woman. Some might say she seems to have her demons. I don't know. They are my words.”

55. Mr Morrissey conceded that there were aspects of Ms Coleman’s evidence “that may never be explained” (T503.34), but submitted that Ms Coleman should be accepted on “the important things”: see T503.34; see also T487.10 and T506.5.

56. Mr Morrissey’s submissions accept, I think, that Ms Coleman’s evidence is highly problematic.

57. I set out some fairly extensive segments of the cross-examination of Ms Coleman relating to her discussions with Colleen and Ric because of their importance to the critical issues in this case and to Ms Coleman’s credibility:

at T106.1-108.12:

Q. Do you agree that on 9 January 2015 you had a meeting between the hours of three and four about Yenna with Dr McCullough and Mr Robinson?

A. Yes, so I took that meeting seriously because Karen called me.

Q. You made a file note of that meeting, didn't you?

A. I assume so.

Q. That file note is PC18, which is CB1‑202.

A. Sorry, CB.

Q. Volume 1‑202.

A. I think I only have, of the Court book? The PC18, yes.

Q. 1‑202, do you have that?

A. Yes.

Q. That is the one in which you refer to them as being lovey‑dovey, is that right?

A. Yeah, they were lovey‑dovey.

Q. And you say, somewhat inconsistently, "could not get clear instructions from Col," but underneath the words "lovey‑dovey" are, "gives him what he wants," correct?

A. Yes.

Q. Those words were Col's, correct?

A. Yep.

Q. The next words are, "Fuck Oklahoma"?

A. Yeah, she said that deliriously.

Q. Deliriously?

A. Mmm‑hmm.

Q. But in terms of clear instructions, "Give him what he wants," and, "Fuck Oklahoma," are pretty clear, aren't they?

A. Well, the dual instructions are very clear to me, yes.

Q. When you say the dual instructions, you mean those two instructions?

A. No. I ‑ I mean that she would say on the one hand, "Give him what he wants," but that wasn't ‑ she also ‑ she wanted what she wanted.

171. Unlike the situation in Nock, Ric did not prepare the document which Colleen signed. It was prepared by Ms Coleman, Colleen’s own solicitor. Thus, that asserted basis for finding suspicious circumstances in the present case is not made out. Not only was it prepared by Ms Coleman, but one thing that is clear is that it was Ms Coleman alone who developed the idea of changing the dispositive page in October 2014 and created the Exhibit 5 Will (then or in January 2015) and gave it to Ric. The second point, however, is that although the Plaintiff does not contend that Colleen did not have capacity, and although Colleen did sign Exhibit 5 and initial Exhibit 6, and although Exhibit 5 and Exhibit 6 were prepared by Ms Coleman, I think that the circumstances are such as to require detailed consideration of the evidence presented to reach a conclusion as to whether Colleen did know and approve of the contents of the documents and intend them to have testamentary effect and whether it has been established that Colleen’s instructions and actions were a result of a lack of volition because of Ric’s conduct. That is what I have endeavoured to do and I will admit to it being no easy task, given the unusual circumstances of the case and the contradictory and confusing evidence.

Is Exhibit D Effective to Revoke any Previous Will?

173. The Defendant’s closing submissions (“DCS”) contended that Exhibit D was not a ‘codicil’ as the Plaintiff contends. Section 15 of the Wills Act, which the Plaintiff relies on and which Ric accepts is the relevant legislative provision, is in the following terms:

15. Can a revoked will be revived?

(1) A will or part of a will which has been revoked is revived by re-execution or by execution of a codicil which shows an intention to revive the will or part.

(2) A revival of a will which was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked.

(3) Subsection (2) does not apply if a contrary intention appears in the document which revives the will.

(4) A will which has been revoked and later revived, either wholly or partly, is to be taken to have been executed on the date on which the will is revived.

Sections 6 and 8 of that same Act are also relevant:

6. How should a will be executed?

(1) A will is not valid unless—

(a)   it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and

(b)   the signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will; and

(c)   the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)   at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

(2) A statement in a will that the will has been executed in accordance with this section is not necessary for the will to be valid.

(3) Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

(4) Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.

(5) This section does not apply to a will made under section 17.

8. When may the Court dispense with requirements for execution or revocation?

(1) This section applies to a document, or part of a document, that-

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms-

(a) the deceased person’s will-if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to-

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside Norfolk Island.

(6) For the purposes of this section-

document means any record of information, and includes-

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph.

174. There was agreement between the parties that the Wills Act governed this issue.

175. The DCS accept that Exhibit D bears Colleen’s mark and that the document bears the date 14 January 2015, although they do not expressly accept the Plaintiff’s contention that Colleen signed it or that she signed it on that date. Since the Plaintiff was propounding Exhibit D as having effect as a codicil and had access to Ms Hayes (T204.20-26), Ric contends that her failure to call Ms Hayes leads to the conclusion that Ms Hayes could not assist the Plaintiff’s case: Jones v Dunkel (1959) 101 CLR 298, a submission I accept. The Defendants contend that the requirements of s 6 are not met because Colleen’s signature was not placed on Exhibit D with the intention of executing it as her will but, rather, with her answering “yes” to the question it posed, namely, did she want another document to be her will?

176. For reasons which I have earlier expressed I have difficulties accepting Exhibit D as a true and clear expression of Colleen’s wishes but I shall, for the purposes of considering this issue, proceed on the basis that the will to which it is referring is the Oklahoma Will. Exhibit D was drafted by Ms Wright who says she did not know that Colleen had made another will after the Oklahoma Will. Exhibit D is not framed as an intention to revive a revoked will.

177. Mr Morrissey did not make any submissions in response to the DCS dealing with the codicil issue. By the DCS, Ric submits that the Norfolk Island legislation simply does not provide for a document that informally revives a revoked will. The DCS refer to In the Estate of Horne (1920) 20 SR 531 at 533 (per Harvey J) for the proposition that there must appear, “within the four corners of the codicil”, an intention to revive an earlier revoked will. This accords with the very clear and strong rule that whoever asserts that some subsequent instrument precludes an earlier testamentary document from its effect must “show that the intention to revoke is as clear and free from doubt as the original intention to give”: see In Re Resch’s Will Trusts [1969] 1 AC 514 at 547 per Lord Wilberforce.

178. In Horne, Harvey J was able to deduce that intention because the document said, “I appoint Joseph Edward Bradbury executor trustee instead of Charles Page”. There is nothing of that kind here. In my view Exhibit D is not a codicil at all and I think the document cannot be constituted as a testamentary instruction that the Oklahoma Will be revived, but rather as an indication that Colleen wanted a will that she had made to be treated as her will.

179. The Plaintiff relies on s 8 of the Wills Act to support the contention that Exhibit D is nevertheless a codicil. To comply with s 8, which provides for dispensing with the requirements of formal execution, alteration and revocation of a will, there are requirements which must be met. It is not immediately apparent that the section applies to a codicil at all, but s 8(1)(a) does refer to a document that purports to state the testamentary intentions of a deceased. Section 8(2) specifies the documents to which s 8 applies (there is no specified operative part but I shall assume that the heading supplies the answer to that – it that the Court can dispense with the formal requirements). Those documents are:

“(a) the deceased person’s will-if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.”

180. Of the above, (a) cannot apply because Colleen could not have intended Exhibit D to be her will. Similarly, (b) cannot apply because there is no alteration of a will. In relation to (c), there is no express revocation of a will contained in Exhibit D – but rather a statement that a will signed at an earlier time is to be the will she intends to be her will. It might be said that Exhibit D is intended implicitly to revoke an existing will, but the document itself does not do so. In my view it is s 15 of the Wills Act which deals with the revival of revoked wills and, if its conditions are not met, I do not think that there is scope for some additional implicit revocation which does not meet the criteria laid down by s 15.

Conclusion

181. It follows that Ric has established that Colleen initialled Exhibit 6 and signed Exhibit 5, albeit on 24 October 2014, intending those documents to replace the dispositive page of the Oklahoma Will and also that Exhibit D is not effective as a codicil reviving the revoked Oklahoma Will.

Costs

182. Ms Morrissey submitted that, should the Plaintiff be successful in obtaining a grant of probate of the Oklahoma Will, both the Plaintiff’s costs and Ric’s costs should be paid out of the estate. The Plaintiff contended that if she was unsuccessful her costs should be borne by the estate on the basis of Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, a decision of Powell J (as his Honour then was). Mr Murr made clear that his client would not accept that the Plaintiff’s costs should be paid out of the estate if Ric was successful in these proceedings.

183. The estate, by all accounts, is not extensive (approximately $2.1 million on the Plaintiff’s estimate, but not including future royalties or valuables: T509.50-510.2, and before costs are deducted). I was given to understand by the parties on the first day of the hearing that the costs of both sides, even at that stage, were equally extensive: see T17.36-18.1.

184. In Re Hodges (at 709E), Powell J noted that in probate litigation the usual rule of “costs follow the event” has been the subject of two recognised exceptions:

“1. where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate;

2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them”.

185. These two exceptions have been recently considered in Walker v Harwood [2017] NSWCA 228 at [52]-[53] per Macfarlan JA (with whom Payne JA agreed at [78]) and to which the DCS makes reference.

186. The DCS made the following points:

1. The usual costs order in civil litigation is that costs follow the event with the consequence that the unsuccessful party is ordered to pay the successful party’s costs.

2. The Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) apply to probate actions as they do to other types of proceedings: Walker (supra) at [52] per Macfarlan JA (with whom Payne JA at [78] agreed).

3. There are two exceptions recognised in probate proceedings. First, where it can be said that the testator was the cause of the litigation and, second, where circumstances led reasonably to an investigation. In the former case, the Court may order that the unsuccessful parties’ costs be borne by the estate. If the second situation applies, the costs will be left to be borne by those who respectively incurred them: Walker at [53]-[54] and [78].

187. By the DCS, Ric contends that neither exception applies and he seeks an order not only that the Plaintiff pay his costs but that she do so on the indemnity basis. The DCS contend that:

1. the first exception does not apply because there can be no finding that Colleen brought about this litigation; rather, it is submitted that Ms Coleman “was on a frolic of her own, not attributable to Colleen in any way” (DCS, paragraph 4.6);

2. Colleen’s mental state was an issue in the case does not mean that the exception applies: Walker;

3. the second exception does not apply because the Plaintiff’s solicitor, Ms Paton, has had carriage of the matter since February 2015; first, on behalf of the Foundation and, then, on behalf of the Plaintiff. Ric contends that, acting reasonably, Ms Paton must have appreciated that there was at least one competing instrument prior to June 2015 when she signed and filed a Statement of Claim acknowledging the Oklahoma Will’s existence;

4. the Plaintiff’s solicitor, acting reasonably, would have recognised that the Oklahoma Will was not an apparently regular executed will;

5. there is a public interest in deterring persons “who take adversarial positions at the expense of their overriding duty to the Court”;

6. the Plaintiff has not acted bona fide or reasonably;

7. the onus is on the party asserting that one or the other of the two probate exceptions should apply: see Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 3) [2017] NSWSC 409 at [22] per Kunc J; and

8. the Plaintiff has retained a qualified practitioner for the litigation and “if the practitioner’s conduct has resulted in the party making less than reasonable investigations or disclosure, the exceptions cannot apply”.

188. In support of the claim for indemnity costs, the DCS assert that until the eve of the hearing the Defendant had been provided no explanation as to how the Oklahoma Will had come into existence. The need for such an explanation was clear from February 2015 and, in any event, from the time that the expert report for Ric was served. The Amended Defence pleaded that the Oklahoma Will was a composite document. An explanation for why it was so was only provided, it was said, on 18 May 2018. The letter of 25 October 2014 and email to Ms Wright, which Ms Coleman had apparently provided to Ms Paton in February 2015 as part of her file, was not made known to Ric until 19 May 2018 notwithstanding the service of a Notice to Produce issued on behalf of Ric to the Plaintiff well before that which required their production.

189. In relation to [187(2)], Colleen’s mental state was not an issue in the case. However, her emotional state was an issue in the case.

190. In relation to [187(3)], I accept that the Plaintiff’s solicitor must have been aware that there was at least one other competing will or testamentary document from a very early stage. The Foundation’s Statement of Claim puts that beyond doubt.

191. Whilst I think it is distinctly possible that, had all the details concerning the Oklahoma Will been made known earlier, costs would have been reduced but that is not attributable to the Plaintiff or her solicitor. I am not persuaded that had the documents produced a few days before the hearing been produced in a timely fashion (as they most certainly should have been) that it would have had any appreciable impact on the course of the hearing.

192. The Plaintiff instructed her solicitor (and Counsel) to seek to maintain the Oklahoma Will and, on the evidence of Ms Coleman, there was a basis for so doing. The Plaintiff did take an adversarial position but I do not accept that she breached a duty to the Court because she did not conclude that Ms Coleman’s evidence should be rejected.

193. The problem with the DCS on costs is that they do not take into account the fact that the Plaintiff and her solicitor were provided with a version of events by Ms Coleman which, if accepted, not only supported the validity of the Oklahoma Will but also would, or at least could, support the conclusion that no later testamentary document was brought into existence or was effective.

194. The evidence of Ms Coleman, the solicitor who had prepared all three documents in question, provided reasons why only the first (i.e. the Oklahoma Will) was the valid will of Colleen of which Probate would be granted. I do not think that the cross-examination of the Plaintiff or Ms Paton demonstrated that they had done anything which they should not have done relevant to the question of costs. It would have been very difficult for the Plaintiff to decide to reject Ms Coleman’s version of events and accept, therefore, that Colleen’s wishes were reflected in Exhibit 5 and or Exhibit 6. Thus I am of the view that the circumstances, as they presented themselves to the Plaintiff and those advising her, led reasonably to the need for an investigation as to whether the Oklahoma Will was valid and whether it was the last will of Colleen. The consequence of that conclusion would be that the costs of each party should be borne by each of them, and that there would be no order that the Plaintiff pay Ric’s costs on an indemnity basis or otherwise.

195. I have given consideration to whether the first exception is made out and whether, if it is, the costs of both the Plaintiff and Ric should be borne by the estate. I do not think that it can be said that Colleen has been the cause of this litigation. She made a will in July 2014 bequeathing her entire estate to the Foundation as she was fully entitled to do. On the findings I have made, she, by October 2014, had changed her mind and decided to give her estate to Ric for reasons known only to her but not shown to be irrational and, more importantly, not as a result of any delusion, mental illness or incompetence as Carr (supra) makes clear would be required. Again, she was fully entitled to do so.

196. The need for this litigation has been caused by Ms Coleman and for two reasons. The first is that she failed to prepare a fresh will in the usual fashion and instead decided that she could substitute one dispositive page for another. The second is that she propounded a version of events by which she sought to justify, in effect, her disassembling of the “will” prepared by her and provided to Ric on her client’s instructions and the reassembling of the Oklahoma Will. That is conduct which, on my findings, was not consistent with the instructions she had received from Colleen and her own actions on 24 and 25 October 2014 and in January 2015. It is this second respect, particularly, which has led to the extensive and unfortunate litigation in this matter. I am not persuaded that the first exception to the normal costs rule has been made out and it follows that the order which should be made is that each party should bear his or her own costs.

Orders

197. I will provide the parties with an opportunity to bring in short minutes of order reflecting the outcome in this case consequent upon these reasons.

**********

Amendments

20 July 2018 - Minor typographical corrections.

31 July 2018 - [93] – In the final line, “Ms Coleman” amended to “Ms Paton”.

[96] – The words “Mr Morrissey’s submission that Mrs Quintal’s evidence” amended to “Mr Morrissey’s submission in [88] above, and his submission that Mrs Quintal’s evidence”.

Correction of dates in paragraphs [23], [156(3)] and [156(5)].

08 August 2018 - Correction of date in paragraph [71(12)].

04 March 2019 - [110(13)] - "significance" amended to "significant".

[111(2)] - "had it been" amended to "had been".

[120] - Name of Ms Coleman corrected.

Decision last updated: 05 March 2019