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- Unreported Judgment
T v R QDC 220
DISTRICT COURT OF QUEENSLAND
T v R & Anor  QDC 220
8 November 2019
31 October, 1 and 2 November 2018
Horneman-Wren SC, DCJ
WILLS AND ESTATES; FAMILY PROVISION CLAIM; SUCCESSION ACT 1981; DISENTITLEMENT; whether applicant has been left without adequate provision for his proper maintenance, education and advancement in life; whether provision ought to be made out of the estate for the applicant; where the applicant’s character and behaviour has disentitled him to any provision
Succession Act 1981 s 41
Evidence Act 1977 ss 59, 79
Bosch v Perpetual Trustee Co Ltd  AC
Collicoat & Ors v MacMillan & Anor  3 VR 803
Dawson v Joyner  QSC 385
Godsell v Wellington  NSWSC 1232
Hastings v Hastings  NSWSC 1310
Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134
Kay v Archbold  NSWSC 254
Madden-Smith v Madden  NSWSC 146
Manly v The Public Trustee of Queensland  QSC 388
Mark Joseph O'Donnell v Colleen Mary Gillespie & Anor  QSC 22
Meissner v The Queen (1995) 184 CLR 132
Palmer v Dolman  NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales (1961-2) 107 CLR 9
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin  221 CLR 191 at 
Wenn v Howard  VR 91
Will of Gilbert (1946) 46 SRNSW 318
I Klevansky for the applicant
M J Liddy for the respondents
McDuff & Guilfoyle, Lawyers for the applicant
Caboolture Law for the respondents
- On 10 October 2016, TBT died aged 77 years. He left a modest estate comprising a house in Woodford, a Ford motor vehicle valued at $5,520 and savings of $25,503.78. At the time of his death he was divorced from his former wife, LCT. He was survived by two children, his son, the applicant in these proceedings, GWG, his daughter, LRM, and four grandchildren. One of the grandchildren, BJT is the son of the applicant, GWG, the other three being the children of LRM.
- The testator made no provision for either of his children in his will. He left to his grandson, BJT, specific gifts of his motor vehicle and the funds in his bank accounts. He willed the residual estate to his three granddaughters in equal shares.
- The applicant applies pursuant to s 41 of the Succession Act 1981 that provision be made out of the estate for him.
Relevant legislative provisions
- Section 41 of the Succession Act provides, insofar as it is relevant:
“ 41 Estate of deceased person liable for maintenance
- (1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
(2) The court may …
(c) refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
The approach to be taken to the application
- The approach to be taken by the court to an application under s 41 of the Succession Act is a two-stage process as explained by the High Court of Australia in Singer v Berghouse as follows:
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the ‘jurisdictional question’. That description means no more than that the court’s power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a).”
- Of the two stages their Honours said:
“The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etcetera were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etcetera appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.”
- Where, as here, the claimant is an adult son, Gibbs J said in Hughes v National Trustees, Executors and Agency Company of Australia Limited:
“It is well settled that these general principles apply to the case of an adult son as well as to other cases. The age of an applicant is however material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support. In Re Sinnott Fullagar J said:
‘No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.’
More recent cases confirm the view there expressed: see Stott v Cook; Pontifical Society for the Propagation of the Faith v Scales; Re Buckland, Deceased [No. 2]; Re Adams, Deceased. In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances – that is, on all the facts that existed at the date of death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.”
- The conduct and character of the applicant are relevant not only to whether such disentitles him to the benefit of an order under s 42(2)(c); they are also relevant to whether provision ought to have been made for him and, if so, what that provision ought to be.
- Both the applicant and the respondents referred to numerous cases in which claims by adult sons have, or have not, been successful. However, a consideration of the specific cases in which the general principles have been applied is largely unhelpful. As the variety of their outcomes demonstrates, each individual application must be considered by applying those general principles to the particular facts of the case. There are a number of cases which do, however, provide useful analysis of the relevant principles and helpful guidelines as to how they are to be applied. A number also identify the difficulty which a court will face in attempting to apply the principles in cases such as this in which there is considerable dispute as to facts, and in which all that was known and considered by the testator when making his will in the terms he chose cannot be ascertained.
The terms of the will
- The testator’s will was made on 14 March 2014. He appointed his daughter, LRM, and LCZ his executors and trustees. As already stated, his estate was gifted to his grandchildren by specific gifts to his grandson, BJT, and by distribution of the residual estate in equal shares to his three granddaughters.
- The absence of any provision for either LRM or the appellant was addressed in clause 10. It provides:
“I have made no provision from my estate for my daughter LRM or my son GWG as they are both financially stable. I have also had no contact with my son GWG for five years and there is no relationship between us. I have no moral or legal duty towards my son and have made no promises to him in respect of my estate. Any gift to him would be contrary to the nature of our relationship.”
- The testator’s reasons for making no provision must be taken into account in considering the jurisdictional question.
Other evidence of the deceased’s reasons for making no provision
- Evidence from a number of sources, other than clause 10 of the will itself, as to the deceased’s reasons for not making provision for the applicant, or for LRM, was admitted. That evidence comprised a typewritten letter dated 5 June 2016 apparently signed by the deceased, and statements made by him to various persons who gave evidence. The applicant disputed whether the letter of 5 June 2016 was, in fact, that of the testator. Section 59(2) of the Evidence Act 1977 permits the court to compare a disputed writing with any writing that is genuine and act upon its own conclusions in relation thereto. Having compared the signature of the testator as it appears in the will which is not disputed, with that which appears on the letter of 5 June 2016, I am satisfied that the latter was signed by the testator. That document, so it seems to me, is admissible under s 92 of the Evidence Act. The statements made to various persons are admissible not as the truth of their contents, but as going to the reason why the will may have been made in the terms it was.
- The letter of 5 June 2016 was in these terms:
“To whom it may concern
Re – GWG
After careful consideration, I have come to the decision that I do not want my son GWG to in anyway shape or form to benefit from my estate, absolutely! I have not seen him for approximately 12 years and do not know where he lives. His only contact with me was when he phoned me to ask that I post bail for him. I refused and he then told me that I was no longer his father.
GWG has been in constant trouble with the law since a teenager. When my daughter LRM and myself were constantly posting bail each time he was arrested.
He attempted to run down his boss on a street in Windor [sic] when he was about 18. During his rampage he hit 6 parked cars belonging to a car yard, damaging them to such and [sic] extent that they were written-off.
He has stolen many valuable items from our family including jewellery and tools which he pawned to buy drugs.
I have loaned him money on numerous occasions when he was younger, none of this was ever repaid.
He has been violent towards my daughter LRM many times, on one occasion he chased her down the street with a butcher’s knife and another time he hit her in the back of the head with a petrol can knocking her to the ground. He is also extremely verbally abusive, screaming and spitting in people’s faces.
GWG stayed at my daughter LRM and her husband RRN home temporarily as he had been in trouble with some bikies that he had done wrong by. I believe it was something to do with drugs. LRM had always stood by him even when everyone else had given up on him. He was only supposed to stay two weeks and he stayed for 2½ years. He moved at the end of March 2002 and was told to leave in August 2004, GWG was made to leave due to physically assaulting MEM (my middle granddaughter). He kicked MEM and left a huge foot shaped welt on her leg which turned into a massive bruise that lasted for quite a long time. In approximately June of 2006 MEM reported to my daughter LRM (her mother) that she had been sexually assaulted multiple times by GWG. After being interviewed by Detective Stephen Marshall he was charged with eight counts of sexual assault and one of assault occasioning grievous bodily harm. He was found guilty of the assault charge but the sexual assault charges were dropped due to MEM having Asperger’s Syndrome and her not being able to cope with the stress of being in court. I have no doubt in my mind that he committed these horrendous crimes against my granddaughter. MEM developed epilepsy which the doctors say was triggered by the stress of dealing with all of this. After being charged he continuously threatened and harassed the RRR family despite them having a protection order against him. On one occasion he attacked RRN with a heavy metal chain breaking RRN’s finger, on another occasions [sic] he hit RRN over his back with a barstool at the local hotel. He entered their property and damage [sic] cars and other belongings.
While staying with LRM he also threatened their neighbour and a friend with a sawn of [sic] shotgun which was found in his possession when he was arrested for hooning a few days later.
He is extremely violent and has recently spent time in jail for firearms, violence and drug related issues. He went to jail for three years on 22 charges relating to a drug fuelled rampage in one night. Some of the charges –
- going armed in public (threatening someone in the local hotel with a shotgun);
- raping his then girlfriend after bashing her and breaking numerous teeth;
- tampering with her car so she couldn’t get away;
- bashing another person in the house with a baseball bat to the head (the man need [sic] facial reconstruction surgery for a fractured eye socket);
- two hit and run incidents, hitting other vehicles with his while attempting to flee;
- assaulting 6 police officers;
- resisting arrest.
- possession of illegal drugs;
- being under the influence of illegal drugs.
I, myself and all my family are afraid of him and what violence he may inflict on us.”
- The testator’s former wife, LCT, gave evidence. Exhibited to her affidavit was a statutory declaration made by her on 26 August 2016. She stated that she had been advised by her solicitor that it could be used to ensure that her son, the applicant, can in no way benefit from her estate.
- The statutory declaration made by Mrs LCT is, in many respects, very similar to the document dated 5 June 2016 which bears the testator’s signature. For example, Mrs LCT’s statutory declaration commences:
“After careful consideration, I do not want my son GWG to benefit from my estate in absolutely anyway, shape or form.”
- It refers in its second paragraph, as did the testator’s document, to not having seen the applicant for 12 years and not knowing where he lived. It too refers to the applicant having been in constant trouble with the law since he was a teenager. It refers in very similar terms to a number of the matters also referred to in the testator’s document.
- Mrs LCT was cross-examined about the statutory declaration and its similarity with the testator’s document. Mrs LCT said that she remembered writing it because she and the testator had discussed the matter and they both wanted their wills protected. She said they had collaborated and “were both adamant that we didn’t want a situation like this”, which I understood to be a reference to these proceedings in which the distribution of the estate under the will was being challenged. Mrs LCT said that they had discussed it on the telephone and that this was the reason why there were similarities between the two documents. She said that she and the testator had discussed what they hoped to achieve.
- Whilst Mrs LCT readily conceded that she and the deceased had collaborated in regard to the content of what became, respectively, his letter of 5 June 2016 and her statutory declaration of 26 August 2016, LRM denied any involvement in the preparation of either document. Mrs LRM did state that she had been told by her father that he had started writing such a letter about the applicant in or around April 2016 but her father did not tell her what he had put in the letter.
- I accept the evidence of each of Mrs LCT and Mrs LRM in respect of these matters. Particularly, Mrs LCT’s frank concession that she and the testator had talked about the issue and had collaborated with a view to achieving as a common outcome that the applicant would not benefit from either of their estates impressed me as forthright and honest evidence. That the testator would then have told his daughter that he was working on such a letter concerning the applicant, but not of its content, would be consistent with his having collaborated with his former wife in the manner she describes, but not with Mrs LRM having been involved in writing it.
- The fact that both the applicant’s parents had collaborated with the common view to excluding him from their estate demonstrates the strength of their desires in that regard. Of course, it is only the deceased’s intentions and his reasons for disinheriting his son which are relevant to these proceedings. However, his collaboration with his wife is evidence of those intentions and his reasons for them.
- The evidence is also consistent with that of the other executor of his estate and respondent, Mr LCZ, who deposes that on his last visit to see him, the testator clearly emphasised that he wanted nothing to do with GWG and that he did not want any death or funeral notices placed in the papers or any social media postings that might notify GWG of his death. He said that the testator’s hope was that by not doing this the applicant would not be aware of his passing and not be in any position to make a claim against his will and his wishes.
- The evidence establishes that the testator’s wishes in this regard were honoured; there was no publication of his death at the time. The applicant only became aware of his father’s passing several months later.
The applicant’s credit
- Because the credibility and reliability of the applicant’s evidence will be relevant to the consideration of a number of issues, but most notably concerning the nature and extent of his relationship with the testator, it is appropriate to address the issue of his credit at this stage.
- There are several matters upon which an assessment of the credibility of the applicant’s evidence can be made with the assistance of independent evidence; that is, not just the applicant’s word against that of others. Those issues include the assaults of which he has been convicted. Each of those assaults is, for reasons which will be developed later, relevant to both the jurisdictional question and the issue of disentitling conduct. For present purposes though it is the evidence of the applicant given in these proceedings in respect of the assaults, and how that evidence reflects upon his credibility, which is the focus.
- The first assault is that upon the applicant’s niece, LRMs’ daughter. The applicant’s criminal history records that on 9 May 2006 he was convicted in the Brisbane District Court of assault occasioning bodily harm. A conviction was recorded and he was ordered to perform 100 hours of community service.
- In an affidavit filed on 27 September 2018 the applicant deposes to his criminal history correctly reflecting that he pleaded guilty to that charge in 2006. In an earlier affidavit filed on 10 April 2017 he had deposed to charges having been brought against him by the same niece. Those charges alleged sexual offending by him against her. He did not mention the charge of assault occasioning bodily harm. He deposed that after a long period these charges went to court “where it was proven that I was innocent and the allegations were false”.
- It is apparent from his September 2018 affidavit that he was tried in respect of the assault occasioning bodily harm at the same time as the sexual offences and that he was acquitted of the latter with a retrial ordered in respect of the former. In regard to the potential retrial he deposes “however, I decided to end the matter by pleading guilty to that offence.”
- Therefore, in respect of the assault occasioning bodily harm count it is clear that he entered a plea of not guilty, went to trial, was ordered to be retried in respect of that count when the jury could not agree upon a verdict, but then entered a plea of guilty upon which he was convicted. Those circumstances may not be inconsistent with his giving evidence in these proceedings that he did not in fact assault his niece. As was observed by the plurality in Meissner v The Queen:
“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty.”
Their Honours went on to explain:
“A court will act on a plea of guilty when it is entered in open court by a person who is of full age and is apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.”
- Therefore, the applicant’s repeated denials of ever having kicked his niece given in the course of his evidence are not necessarily inconsistent with his guilty plea to the offence. If the matter rested there the conviction for assault occasioning bodily harm to his niece may have little bearing. The fact of his conviction for that offence being relevant to an issue in these proceedings, viz his character, would be admissible for the purpose of proving that he committed that offence. Proof that the applicant had been convicted of that offence would lead to his being taken to have committed the acts which at law constitute the offence, unless proved to the contrary. His denials, if accepted, could provide that contrary proof.
- If the applicant’s denials were accepted, then that may reflect favourably not only on the substantive issue of his character, but also his credit. The opposite would be so if his denials were not accepted.
- There is a further matter, though, which reflects unfavourably on his credibility whether his denials are accepted or not.
- Exhibit 8 is a hand written document. It was produced by the applicant in answer to a subpoena. It apparently formed part of a prison file relating to the applicant. Although the applicant immediately identified the hand writing in which the document was written as his own when first shown it, he would later say that he didn’t know if he did actually write it. He said that when being cross-examined and in the apparent realisation that the document’s contents were not favourable to him. That, of itself, is a matter which reflects poorly on his credit. The text and context of the document would readily establish him as the author. It is written in the first person and contains references to family matters, life circumstances, injuries sustained in an assault and a motor vehicle accident, a compensation claim, a work history and a criminal history to name just several, all of which are readily identifiable as being referable to him from his affidavit and oral evidence.
- The context is apparently that it was written whilst he was incarcerated and was made in support of an application for parole. There are a number of contextual features which would establish this. Attached between the handwritten pages of the document is a pro forma typewritten document headed “social background (outside prison)”. There are boxes provided for the person completing the form to indicate his or her marital status. There is a provision for the person’s family background to be set out. The question is then asked whether the person has any dependants or children and space is provided to set out their names and ages. The person completing the form is then asked to comment about his or her past and present relationships with their partner, family and friends. That request bears the notation that “it may help the board to understand your situation”. It is quite apparent that the “board” is the parole board.
- The handwritten document commences by addressing those issues set out in the pro forma document. It is headed “social background”. The author writes of his relationship with his parents which he says “was and is great”. That description of his relationship insofar as it relates to his mother is inconsistent with his affidavit and oral evidence. Most notably, in para 8 of his affidavit sworn on 16 October 2018, he says “I have never really enjoyed a relationship with my mother however I respect her as my mother”.
- Because it is apparent from the document that it was made in relation to a parole application in respect of his “current imprisonment” which was for offences which he describes and which are clearly those for which he was sentenced in November 2009 to three and a half years imprisonment, it could not have been authored any earlier than late 2010. His parole eligibility date for that sentence was fixed at 27 February 2011. Far from having a “great” relationship with her at that time, he had not even spoken to her for, by then, some seven years.
- A handwritten document, again apparently following the structure of the pro forma document, goes on to refer to friendships, his child and his past personal relationships. However, the text of the document which most clearly establishes that it was written in the context of a parole application is the direct statements relating to his imprisonment and potential release. At paragraph 2 it is said that “if I am released on parole I would like to get him (his son) up here to visit me”. On page 2, after setting out the motor vehicle accident and the injuries which he sustained, the author says “with the lack of pain management my mood at time has been unacceptable, but everyday I try myself (sic) to be a better prisoner”. At paragraph 6 on page 3 he says “I have two debets (sic) one is to SPEER (sic) that is $1600 an (sic) $2000 to Mastercar (sic) and on release I will make sure that paying them off is a priority”.
- The author then goes on to refer, under the heading “criminal background and offence”, to two episodes of criminal offending: one clearly the offences from the applicant’s criminal history which saw him imprisoned and the second clearly his conviction for having assaulted his niece. He also refers to three community based orders to which he was subjected, accurately identifying the nature of the order (probation or community service), the date upon which each was imposed and the duration of each in precise correlation with his criminal history.
- Given these textual and contextual matters, the applicant’s subsequent expression of uncertainty as to his authorship of the document was disingenuous.
- In this document written in support of a parole application the applicant said this about the earlier assault of his niece:
“I have had one assult (sic) charge which I regerat (sic) terribly. My niece was kicking animals at the house and in a bad judgement of discipline I kicked her in the leg. I still feel terrible about my accitions (sic) because I should have just had a talk to her and explained it was wrong.”
- Contrary to his repeated denials in these proceedings of ever having kicked his niece the applicant not only candidly admits the assault, he: describes it; explains the circumstances in which it occurred; expresses ongoing remorse for his actions; describes those actions as “bad judgment”; and purports to demonstrate insight into how he should have dealt with the situation.
- When he was cross-examined about these matters, after he had accepted the document as being his own but before he subsequently expressed doubt about that, the applicant when asked if he could explain why he would have written those words said “no, I can’t to be honest, no”.
- In my view, given the extent of the explanation provided in the handwritten document, it is more probable than not that it contains the truthful account rather than the applicant’s denials being truthful. Those denials should be rejected. This would lead to the conclusion that the applicant was prepared to give untruthful evidence in these proceedings. The reason for his giving untruthful evidence could only be that he thought such evidence would improve his prospects of succeeding in this application, particularly by painting his character in a better light.
- If, however, one were to assume that his denials of the assault of his niece which he now offers are true, then the only explanation for the purportedly full and frank admission and expression of contrition and remorse set out in the handwritten document would be that he thought by making such statements (which must have been untrue if his denials are correct) would assist him in his application for parole. It would demonstrate that he would be prepared to make up untruths in elaborate detail in the hope of obtaining a favourable outcome.
- Therefore, whether his denials of the assault be true or untrue, either way one is led to the inevitable conclusion that the applicant is a person who is prepared to be untruthful and say whatever he believes will better his chances of achieving whatever end he is pursuing at the time. His evidence in respect of the issues of this application must, therefore, be treated with care.
- There is a further example emerging from the handwritten document and his oral evidence which demonstrates why this evidence needs to be carefully considered before it would be accepted. It relates to other criminal offending which saw him incarcerated.
- The criminal history records that on 2 November 2009 he was convicted of assault occasioning bodily harm, wilful damage and sexual assault, all of which were committed on 4 October 2008. Of this offending he says at para 68 of his affidavit of 27 March 2017:
“Unfortunately and subsequent to this trial I was convicted of a serious assault and spent three years and three months in jail (2009) as a result of my actions when I found a man in my house in bed with my girlfriend and I assaulted him there and then.”
- What the actual facts surrounding this offending were are not in evidence. However, as with the assault upon his niece, the applicant’s account in the document in support of his parole application is starkly different to, and inconsistent with, his evidence in these proceedings. In the former he said:
“The circumstances which led to my current imprisonment are that I had come home and walked in our bedroom and saw my defacto girlfriend having sex with another man. I had a brain snap and overreacted to the position I found myself in. I was out of carictor (sic) of me as I was assulted (sic) myself in 1997 and injured badly.”
- By contrast, in his oral evidence he said:
“I lived in a house with a girlfriend. We shared. Neither of us were coming home that night. I actually came home early. No one was supposed to be there. I walked into the house. I was confronted by a male, a large male, in the house. I didn’t know who it was. I reacted by picking up a baseball bat in my bedroom, started fighting with the male and eventually got the light on and saw that my girlfriend was in the bedroom as well. I fought with him all the way out the house, and she ran out of the house, and that was it.”
- As can be seen, in the former he explains that he had a “brain snap” as a reaction to having seen his girlfriend having sex with the man. In the latter he has taken the baseball bat to the person, who he would later in his evidence describe as being seven feet tall, before he even knew of the presence of his girlfriend in the house. They are entirely irreconcilable accounts.
- Again, whatever the truth of the matter is, the conclusion to be drawn is the applicant will say whatever he thinks is most beneficial to his cause at the time. Again, this means that his evidence, particularly on the important issue of his relationship with his father, should be approached most cautiously.
- There is one still further matter which would suggest caution in accepting the applicant’s evidence.
- In his affidavit of 27 March 2017 he alleges that when he was 13 he was raped, on more than one occasion, by the then boyfriend of his sister, the respondent. He alleges that the rapes took place in the presence of his sister and that she helped cover-up the abuse, for example by closing the door. He offers this as an explanation for why he and his sister, on his version, were never close. Furthermore, he claims to have told his mother of the abuse on several occasions, but he says that his sister would jump in and insist that he was lying.
- For her part, his sister denies that there were any such episodes of abuse. She says that their relationship was a good one. She became quite upset when cross-examined about the issue. She said that she was upset because it was not true. In my view, the emotion displayed by LRM when cross-examined about these matters was genuine.
- The allegation that the applicant’s mother, effectively, failed to act upon her adolescent son’s several reports of sexual abuse at the hands of her daughter’s boyfriend was not even put to Mrs LCT in cross-examination.
- The alleged abuse finds no support in other evidence. The applicant put into evidence a report of a psychiatrist, Dr Eric De Leacey. In it, Dr De Leacey sets out the applicant’s past psychiatric history. It refers to him having a history of post-traumatic stress disorder arising from a serious assault upon him in 1999 in South Australia. No mention is made of child sexual abuse. The “only other stressor” of which the applicant informed Dr De Leacy was “from the traumatic relationship termination which led to him being charged with assaulting his partner’s lover”. Under the heading “personal history” Dr De Leacy records the applicant as having “said his childhood was reasonable”. Dr De Leacy recorded that the applicant reported flashbacks to the events of his motor vehicle accident in which he suffered serious injury and of an assault upon him in prison. Again, the applicant reported no childhood sexual abuse.
- Exhibit GWGT2 also contains a report from Mr Gordan Siebel, an occupational therapist. In it Mr Siebel summarises a number of medical reports which had been provided to him for his consideration. He notes a report of Dr Whiteford, a psychiatrist, in which he referred to a long history of post-traumatic stress disorder. Dr Whiteford recounted the onset of that disorder in the context of an assault in July 1997 with an aggravation of it following the motor vehicle accident in 2009. The applicant had also told Dr Whiteford of physical and sexual assaults by other inmates when in prison which Dr Whiteford described as “the cause of further trauma for him”. Again, there is no mention of childhood sexual abuse.
- In his evidence the applicant said that the psychiatrists had not asked him if there was anything emotionally disturbing in his past. That seems improbable. The reports reflect that they were obtaining a history from him; including of past emotional disturbances. The absence of any recounting of such events to those psychiatrist suggests recent invention.
- As already observed, the estate is modest. In an affidavit sworn on 30 October 2018 the solicitor for the estate, Mr Peter Smith, deposes to the property at Woodford having been sold and the balance funds deposited into his firm’s trust account. The value of the estate as at 30 October 2018 was $400,796.47 together with the motor vehicle valued at $5,520. It was estimated that after payment of costs of this proceeding the net value of the estate would be $365,166.47 plus the car.
The testator’s relationship with the applicant
- As I have already observed, the testator’s relationship with the applicant is particularly important in this case. The relationship between an applicant and the testator will always be a consideration, however, in this case its particular prominence emerges from the statement of the testator in his will that he has no relationship with the applicant and that any gift to him under the will would have been contrary to the nature of their relationship, thus explaining his exclusion from any provision for him.
- The applicant deposes to having a close relationship with his father up until about the age of 40. He places the deterioration of his relationship after that time firmly in the context of the allegations of sexual offending by him against his niece and what he would assert was a controlling influence exercised by his sister over their father which, itself, he puts down to her influencing the testator in respect of those allegations.
- On the applicant’s case, despite his living with his mother when his parents divorced he saw his father every second weekend and for much of the school holidays. He says that his mother prevented him from spending more time with his father with whom he claims to have had a closer relationship than that with his mother. He also claims not to have been close to his sister. He recalls there to have been a custody battle in which his father unsuccessfully sought to have the applicant live with him. He says that he went to live with his father upon completing school after year 10.
- The applicant deposes to the testator organising his first job as an apprentice spray painter, driving him to work every day so that he could keep an eye on the applicant who describes himself as being “a bit rebellious” during that period. He moved on from spray painting and became involved in the fishing industry locally in Moreton Bay. He referred to his father coming to the boat whenever he returned to port to drink coffee and chat as soon as he tied up. He said his father was popular with the other crew members and that “this occurred on hundreds of occasions”.
- Fishing work took him to northern Australia for a period. When he was doing this his then pregnant partner moved in with the testator with the applicant returning to the house when the work finished.
- In his early 20s the applicant says he relocated to South Australia continuing to work in the fishing industry and for several years in hotels. He says that he would visit his father for a few weeks twice a year. After his son BJT was born, the applicant said he would visit his father accompanied by his partner and their son, again about twice a year.
- The applicant says that he relocated permanently to Queensland in about 1999 or 2000. He says this was prompted by the testator asking him to come and run one of his two lattice businesses for him which the applicant agreed to do. He refers to those two businesses as having been located on Bribie Island and Redcliffe. He says that he had been working in the family business for a few months when his father decided to sell the businesses and retire. He places this in the context of his father’s diabetes “now catching up with him”. He says that this forced his return to the fishing industry. He claims that he would then visit the testator twice a week and spend time with him on weekends working with him in his garden. At this stage he referred to his father being limited by his diabetes, resulting in them spending much time together fixing up cars. The applicant says he and the testator also rebuilt a motorcycle together.
- The applicant says that at this juncture in his life the testator needed to control his diabetes by weighing his food before injections, eating the correct foods at the correct times and injecting himself four to five times each day.
- The applicant referred to the continued deterioration of the testator’s health and deposed to one particular occasion when he was in Cairns and was unable to get the testator to answer the telephone when he made one of his regular calls to him. Being worried that the testator did not answer, he says that he immediately rang an ambulance who attended the testator’s premise and found him collapsed on the floor. He says that following this episode his father brought up in conversation many times how he thought the applicant must be psychic and told everyone how the applicant saved his life.
- The applicant says he returned from north Queensland and lived in the local area for approximately two years during which time he said that he very much enjoyed getting close again with his father and keeping an eye upon him. He says that during this time his sister was living approximately 40 minutes away, however, there was trouble with her partner, RRN, because, the applicant says, RRN constantly wanted money from the testator; a situation which upset the testator and of which he would often complain to the applicant.
- The applicant says that RRN was stealing tools from the testator which caused the testator to be particularly bitter towards RRN. He says that RRN’s father borrowed a caravan but never returned it. He refers also to his father being very disappointed with his sister and RRN because they had a poor relationship and that his father knew of RRN constantly being physically violent to her and that this had occurred for a long time.
- On the applicant’s account, he received some money as a result of a criminal compensation claim at which time LRM thought it would be a good idea if he went to stay with her. He says LRM told him that it would help stop RRN being physically violent toward her and the children. The applicant says though that he was unable to stop RRN’s violence when he was there and which he found unsettling and frustrating. He also says he moved about four months later to live with a friend in the local area.
- The applicant says that it was about 12 months later when he was charged with sexual offences committed against LRM’s daughter. He considers those charges were very much driven by LRM. He says that it was as a result of those allegations that he and his father began to fall out and not be as close, such that ultimately they did not communicate.
- At this time, he says that the testator’s health was deteriorating and he became more reliant upon LRM who seemed to have more control over their father than she had had at any stage of his life. He suggested LRM was brainwashing the testator and had convinced him that the applicant had interfered with her daughter.
- He says that after he began to fall out with his father after his niece’s allegations against him, and his father became more reliant upon LRM, his father took LRM’s side and was emotionally driven away from the applicant. He says that eventually his contact was not well received by his father and he chose to leave his father alone although ideally he wanted to be with him. He could check on his father through friends, but this was frustrating.
- The applicant says that after his “unfortunate” jailing in 2009 this provided LRM with the perfect opportunity to influence their father in how he was thinking given that he was an older man in need of immediate family to comfort him in his old age.
- In his oral evidence the applicant said that the last time he had contact with his father was in 2012. He telephoned his father once after his release from jail. He said they had a conversation from which he realised that he “was pretty much pushed aside”. He said that the testator told him that he did not want to come between the applicant and his sister and that he would prefer if they did not have any more contact.
- The applicant says his father told him that he didn’t really want to catch up and that he was “living with worries and I don’t want to be involved because of the stuff with LRM”. The appellant says he respected his father’s wishes and backed off.
- The applicant says that he had no contact with his father after that. He says that he accepted that his father was old and that his sister had control of him and that he was “now not part of my life”. He says that his father was living close to his sister and given the limited time that he had left with his failing health it would have been totally disruptive of his father’s life if he had persisted in trying to see him. He says that he could not bring himself to cause any grief to his father by asking him to choose between LRM and himself so he eventually accepted they were lost to each other.
- He did not tell his father he had just got out of jail, nor did he try to explain why he hadn’t spoken to him for three and a half years. He said that he would not volunteer “criminal stuff” to his father. He explained that it was he who would call his father and that his father never called him. He made that observation in an explanation of why he would not have told his father the reason for his not having been in contact for such a long period of time. The applicant seemed perplexed at the thought that his father would have known that he was in jail asking, rhetorically, how he could know that.
- Although the evidence does not reveal the precise date upon which the applicant was released from jail, an analysis of the evidence would seem to establish that it would have been in late 2012. The applicant in his affidavit says that he spent three years and three months in jail. His Queensland criminal history reveals that he was sentenced on 2 November 2009 to a head sentence of three years and six months. 152 days of presentence custody were declared. The presentence custody had been served in two separate periods. There was a period from 30 October 2009 to 1 November 2009 which would appear to be served after conviction but before sentence. The more lengthy period of 149 days was served between 21 November 2008 and 17 April 2009. By the time of sentence the applicant had therefore served 5 months of the three year six month head sentence imposed. Even if he served out the whole of the remainder of the sentence, that would have seen him released in December 2012.
- These dates give context to the relationship between the applicant and the testator in the last part of the testator’s life. The applicant’s release from prison was approximately four years before the testator’s death. His incarceration was for three years before that. The applicant’s earlier period of presentence custody was from 21 November 2008. On the applicant’s account he only spoke to his father once upon his release and not at all during the term of his incarceration. Because he had not discussed any “criminal stuff” with his father it seems more probable than not that he would not have spoken to his father either during the period of presentence custody or the period preceding his trial. That would mean that apart from the post release phone call there had been no contact between them since November 2008 at the earliest; almost eight years prior to the testator’s death. That accords, in a general way, with the testator’s statement in clause 10 of his will made on 14 March 2014 that he had had no contact with his son for five years.
- I would pause to observe at this time that the statement in his will that as at March 2014 he had no contact with his son for five years is not necessarily inconsistent with the statement in his document of 5 June 2016 that he had not seen his son for approximately 12 years. If the contact had been by telephone, then each statement could be correct. This is made more likely from the testator having used the expression that he had not “seen him” for approximately 12 years in one sentence, then in the next sentence referring to his son’s “only contact” having been when he telephoned on a previous occasion.
- The applicant’s account of his relationship with his father is at odds with that of his sister, his mother and also that of Mr LCZ.
- His sister disputes that their mother prevented her and the applicant from spending time with the testator following their parents’ divorce. She says that their mother encouraged them to do so. She says that her parents remained on amicable terms, making all decisions with the best interests of the children in mind. She says that there was never any custody disputes.
- Contrary to the applicant’s evidence that she and he were not close, LRM says that they were from a young age, becoming even closer after their parents’ separation. Her evidence is that she moved out when she was 20. This would mean that the applicant was about 16-18 years old during that period as her evidence of their ages at the time of their parents’ separation was that she was 12 and GWG 10.
- She refers to a time when she moved to live with her father as an 18 year old. She says that the applicant was there on and off, but other evidence she gives, for example of an occasion during this time when the applicant assaulted her and of the applicant’s involvement with police, suggest that his presence may have been more regular.
- She refers to there being drug raids on the testator’s house in which drugs were found growing in the applicant’s room and marijuana plants were found growing in the yard. The applicant’s criminal history reveals that he was found: in possession of utensils used in connection with smoking of a dangerous drug on 18 December 1984 when he would have been 17 and a half years old; in possession of a prohibited plant on 22 June 1986 when he would have been 19; and in possession of a dangerous drug on 14 October 1988 when 21. The possession of a prohibited plant was dealt in the Cairns Magistrates Court and the possession of a dangerous drug was dealt with in the Brisbane Magistrates Court. It is, therefore, unlikely that either of those offences were committed at the testator’s premises. By contrast, however, the possession of utensils as a 17 year old was dealt with in the Sandgate Magistrates Court and is likely to relate to that period when he lived with his father. This is the drug offence which the applicant identifies as having been committed at his father’s house.
- LRM discounts GWG’s evidence that their father would have visited the boats on which he worked when they docked and drank coffee with the crew on the basis that the testator did not drink coffee until a few years before his death and that he was not a social person.
- LRM says that after GWG’s return to South Australia she and their father would rarely hear from him let alone see him, with months passing between phone calls at times.
- Contrary to the applicant’s evidence his sister deposes that he never visited their father with his son, BJT, although she does say that BJT visited on one occasion when the applicant was living with her and her father. Otherwise, she says that BJT only visited when she and her parents could afford to pay for his flights or he came with his other grandparents.
- As to the locations of their father’s businesses, LRM states that there was not a business at Redcliffe, it being located at Deception Bay. The applicant accepted that the lattice business was not in Redcliffe but in a suburb next to Redcliffe in his affidavit in reply. LRM also disputes that GWG ever worked at the shop, although she concedes that he may have helped their father out occasionally. She herself worked there regularly, albeit in an unpaid capacity.
- LRM also contests GWG’s evidence concerning the effects of the testator’s diabetes upon his health and his lifestyle. She says that his diabetes never controlled what their father did, that he only ever had two needles per day, one before breakfast and one before dinner, and that his health only deteriorated when he was later suffering from cancer, living a full and active life before that notwithstanding his diabetes. He was diagnosed with cancer in 2013. She says her father never collapsed on the floor until 2016 when he was dying of cancer and that the applicant never saved his life.
- She also contested that the testator ever rebuilt a motorbike with GWG saying that her father hated motorbikes as a consequence of his best friend having been killed when riding one when he was younger.
- LRM denies the allegation that her husband was abusive to either herself or their children.
- By LRM’s account, she and GWT remained extremely close throughout their lives until such time as GWT came to live with her and her husband. She says that during that period of time GWT stole from them, lied constantly and was nasty to their children. She says that he moved into their home in March 2002 and was asked by them to leave in August 2004. The event which she says precipitated their making him leave the home was his kicking their daughter which became the subject of the assault occasioning bodily harm charge.
- She says that the testator stopped having anything to do with GWT shortly after he moved out of her home. Although in a second affidavit she says that from about 2001 their father said that he wanted nothing more to do with GWT.
- The friendship between the testator and Mr LCZ commenced in 1974. Their friendship continued until the time of the testator’s death. Mr LCZ gave oral evidence that in the 30 years of their friendship he never saw the testator and the applicant together. He said that the testator did not speak fondly of the applicant and the testator did not believe that they had a good relationship at all. Mr LCZ deposed to the defendant having told him of the applicant’s involvement with drugs and of police having executed a search warrant at his home and of his having to sit there whilst they pulled his house apart, and that they found drugs and implements belonging to the applicant.
- He also gave evidence, consistent with that of LRM, that despite his diabetes the testator’s ability to work and to do things he wanted were not restricted in any way. He illustrated this evidence with the example of the testator having driven from Brisbane to Broome to visit Mr LCZ and his family on a number of occasions. Mr LCZ said that the testator had taught them about his routine whereby it was necessary for him to eat at regular times and that he had adjusted to the testator’s needs. In this regard he also referred to the testator going camping and fishing with him, including offshore, often for more than a week at a time, and his appearing to have a great time regardless of his diabetes.
- In respect of the testator’s relationship with the applicant, Mr LCZ deposed to an occasion on which he had asked after the testator’s family and the testator had replied that he had no connection with the applicant whatsoever and that he wanted nothing to do with him. When asked why this was so, the testator had said that he had done terrible things to MEM, his granddaughter, but would not go into any detail.
- The evidence of the applicant’s mother was also contrary to there having been a good relationship between the applicant and the testator. She disagreed with the suggestion. She deposed to the fact that she and the testator remained on amicable terms notwithstanding their divorce. She said that it was the testator who informed her when the applicant got into trouble. She said that the testator spoke to her in such a way as to demonstrate that he knew his son was in jail.
- Mrs LCT rejected the suggestion that it was from the time at which the testator found out about the allegations of sexual offending by the applicant against his niece that the testator wanted nothing more to do with him. She said it was before that and that those allegations were “just the final straw”.
- As to the demise of their own mother and son relationship, Mrs LCT deposed to there having come a time “when a mother’s love could not excuse his behaviour”. This was due to his engaging in criminal conduct. She said that she is afraid of the applicant, and whilst agreeing that he had never been violent toward her, she said “but I have seen what he’s done to other people”. She deposed to being in the process of having a security system installed at her home for safety. The applicant’s sister has also given evidence of being afraid of the applicant.
- There is evidence that the testator was also afraid of the applicant. That evidence came from a seemingly quite independent witness.
- Ronald Hewitt sold the testator the block of land which adjoined his own in April 2008. They remained neighbours, so Mr Hewitt knew the testator for about eight years prior to his death. He too gave evidence that the testator had told him, on numerous occasions, that he wanted nothing to do with his son, and that he lived in fear of him.
- Mr Hewitt said that at the time he sold the block to the testator, he had an electric fence around both blocks to keep his dogs in. He deposed to the testator having asked him to leave the electric fence “as is” when he purchased the block. The reason the testator gave for wanting the fence to remain was that he was very frightened of his son, GWG.
- Mr Hewitt was cross-examined about the fence. He was asked whether he was serious in regard to what he had said about that in his affidavit. He was asked:
“Are you serious with that statement? Does an electric fence keep a man out of a property for a dog?”
- Mr Hewitt responded:
“It’s for the dogs, but Baron said it would keep his son out, apparently.”
- Mr Klevansky on behalf of the applicant persisted:
“But it wouldn’t keep any person out of that property, would it? Do you concede that?”
- Mr Hewitt answered:
“9,800 volts. It would certainly keep someone out of the property.”
- Mr Klevansky persisted further:
“Was it a low fence? How high was the fence?”
- Mr Hewitt exaplined:
“Well, it was on the top and bottom because I had a big dog called Mutley, and he had to jump over.”
- When asked to indicate how high the fence is Mr Hewitt said it would be approximately 4-5 feet. He said it was a fence over which the average human would have to climb not jump.
- Mr Hewitt rejected the suggestion that the testator told him that the reason he didn’t want anything to do with his son was because his son had been accused of sexually assaulting his granddaughter, saying “he didn’t say that at all”.
- In cross-examination, Mr Hewitt confirmed that LRM was always over there caring for her father.
Conclusions as to the relationship between the applicant and the testator
- I am unable to accept the applicant’s evidence about the relationship between him and his father, the testator, which was, effectively, that they experienced a good relationship up until the allegations by his niece of sexual abuse were made in 2006. He would have it that the relationship was a close one, in which they spent considerable time together when he lived in the same locality, and throughout which they remained in regular contact when he was absent. He would have it that from the time of the allegations of sexual offending LRM exerted control over their father which she used to turn him against the applicant.
- I conclude that not only was the applicant’s evidence about their relationship inaccurate, it was intentionally so. He sought to mislead the court on a central issue in the proceedings.
- An example of the applicant’s evidence by which he sought, falsely in my view, to portray a closeness in the relationship with the testator was in respect of the occasion on which he says that he could not get the testator to answer one of his regular telephone calls to him and he arranged for an ambulance to attend at the house where, he says, they found the testator collapsed on the floor. He says that these events caused his father to tell “everyone how I had saved his life”.
- For her part, LRM says this evidence “simply is fallacious”. There was no such collapse at that time and there had been no deterioration of the testator’s health until 2013. If there had been such an episode, the applicant clearly did not tell LRM about it. When asked whether he ever discussed calling an ambulance for his father with his sister his answer was “I doubt it”. The testator’s close friend, Mr Czislowski, had not been told of such an event by the testator.
- It would seem most unlikely that a caring son who had needed to call an ambulance because his diabetic father had an episode such that he had collapsed and his father had credited him with saving his life would not inform his sister, who lived much more proximate to their father, of that episode such that she would be aware of it and be able to keep an eye on him. One would also expect that if the testator had been found alone and collapsed on the floor he would have been taken to hospital. Whether he was taken to hospital or not, one would infer that a close, and close by, relative would be informed, unless there was some reason for the testator to want to have such information withheld from his daughter. There is nothing in the evidence from which to infer that the testator would want such information withheld from LRM. The evidence is that they were close and that LRM assisted in his care.
- It would also seem unlikely that if the testator was telling everyone that the applicant saved his life, Mr Czislowski would not be amongst those told at some time.
- I would, therefore, conclude that this was an episode created by the applicant so as to paint the relationship between him and his father in a more favourable light.
- My conclusion is that far from the applicant and his father being close until 2006 when the niece’s allegations were made, the relationship had deteriorated to the point of almost non-existence well before those matters arose. It had deteriorated in the context, and as a consequence, of the applicant’s personal conduct particularly his criminal offending and most notably his violence towards his niece for which he was convicted of assault occasioning bodily harm. There are many reasons for reaching these conclusions.
- First, and most persuasively, are the testator’s own expressions in that regard. His will made in 2014 refers to an absence of contact for five years and there being “no relationship between us”.
- Secondly, in the letter of 5 June 2016 he refers to having not seen the applicant for 12 years. This is consistent with the ultimate falling out having occurred in 2004. The charged period for the assault occasioning bodily harm was between 31 December 2003 and 1 March 2004. It is consistent with his having been asked to leave the home of his sister and her husband, the parents of the assaulted niece. It is consistent with Mrs LCT’s evidence that the testator wanted nothing more to do with his son before the sexual allegations concerning his niece arose, those allegations being “just the last straw”.
- From the letter of 5 June 2016 there can be no doubt that the testator did believe that the applicant committed sexual offences against his (the testator’s) granddaughter. He expressly says that he had no doubt that the applicant did commit them. However, he speaks of these “horrendous crimes against my granddaughter” collectively, apparently including both the assault occasioning bodily harm and the alleged sexual offences. I do not consider that one could interpret the letter of 5 June 2016 in such a way so as to distil the allegations of sexual offending as the predominant reason for their estrangement or for the exclusion of the applicant from the testator’s will.
- Furthermore, it is clear from the letter of 5 June 2016 that the applicant’s violence towards others, particularly that which resulted in his conviction and imprisonment for three and a half years, also concerned the testator and played a part in his decision to disinherit the applicant. It is clear that the offending referred to in the letter is broader than that of which the applicant was convicted in terms of both the number and nature of the offences.
- For example, the applicant was not convicted of raping and bashing his girlfriend; he was convicted of sexual assault. He was, however, convicted of “bashing another person in the house with a baseball bat to the head”; those were essentially the facts of his assault occasioning bodily harm whilst armed, albeit an indelicate description of the offence. The testator also referred to there having been 22 charges whereas there were convictions only for assault occasioning bodily harm whilst armed, wilful damage and sexual assault. However, the applicant himself said that he believed that there were originally 18 charges. There were no convictions for firearm offences on that occasion, nor is there evidence of a firearms offence having been committed on an earlier occasion when the applicant is said by the testator to have been found in possession of a sawn off shotgun.
- It should be observed, though, that whilst the testator wrongly overstated the number and nature of offences for which the applicant was imprisoned, he also wrongly understated the sentence which was imposed: 3 years rather than 3 and a half. However, that may be no more than a reflection of the declaration of 152 days of pre-sentence custody with the effect that the remainder of the sentence was a little more than 3 years.
- In an overall consideration of the issues relevant to these proceedings, those particular inaccuracies can be put to one side. In my view what is apparent from the letter is that it was the fact that the appellant had been sentenced to a lengthy term of imprisonment for serious violent offending which was the issue which concerned the testator in respect of that, then, recent offending.
- In my view, it is also unnecessary to resolve the precise details of the applicant’s offending prior to the assault of his niece. Much evidence was directed towards that earlier offending such as whether the applicant was caught growing cannabis at his father’s house or only in possession of utensils as his criminal history records. What is most relevant is the testator’s statement in the letter of 5 June 2016 that the applicant had “been in constant trouble with the law since a teenager”. Whilst the applicant’s criminal history does not disclose constant offending in the sense of repeated convictions demonstrating an unbroken stream of offending, the testator’s expression in the letter of 5 June 2016 should not, in my view, be read as one might read a lawyer’s submission as to the extent of an offender’s offending. Rather it should be read for what it is; a father’s explanation of his reasons for disinheriting his son. An exasperated father who had come to the point of excluding his son from his will may well use the expression “in constant trouble with the law” in an imprecise way. It does not detract from the father’s explanation.
- The testator’s statement that the applicant had been in trouble with the law since he was a teenager is consistent with Mrs LCT’s evidence that GWG had first been in trouble with the law when he was 13 or 14. It is to be noted that the applicant’s criminal history which is in evidence is only his adult history. It commences with an offence committed on 18 December 1984 when the applicant would have been aged 17 years and 9 months. What, if anything, appeared on a juvenile criminal history is unknown. The applicant did not, however, contradict that statement by his mother in his affidavit in reply. I would conclude that the applicant’s description of himself at those times as “a bit rebellious” and “mischievous” was something of an understatement.
- Whatever the precise details of the applicant’s involvement with the law, it remains clear that it provided a background to the testator deciding in 2014, and as explained in 2016, to disinherit him in the context of his later, more serious offending. As is clear from the letter of 5 June 2016, those other earlier matters did not, of themselves, cause the testator to exclude the applicant from his will.
- So too, the precise facts associated with violence occasioned by the applicant to LRM in the past need not be determined. I accept, preferring the evidence of LRM to that of the applicant, that the matters stated in the testator’s letter in that regard are true. So too I accept his statements concerning the applicant stealing from the family. Those are not matters which would be reflected in his criminal history unless a complaint was made. I readily conclude that no complaint would have been made about those things. For the same reason I would conclude the testator’s statement that he loaned the applicant money on numerous occasions which was not repaid was correct.
- All of those matters are again to be understood as being part of the testator’s explanation of his disinheritance of the applicant in the context of a non-existent relationship with him and his later violence occasioned to his niece and others.
- Similar observations may be made in respect of the evidence as to whether the applicant and/or LRM were ever required to “post bail” for the applicant. The applicant gave evidence that LRM never paid watch house bail for him, pointing out that watch house bail does not require payment; “it’s given to you on your own recognisance”.
- What the evidence does reveal, as one would expect, is that the applicant was granted bail on several occasions. I would not discount his father’s statement in the 5 June letter that his only contact with the applicant was when he phoned asking him to post bail for him. That statement, again, should not be read with the legal precision one would expect of a lawyer. It may have been that there was to be a surety, or a deposit of money or other security. Such conditions can be imposed on watch house bail granted by a police officer. Release on the charged person’s own undertaking does not exclude such conditions being imposed.
- In summary, whilst the testator’s belief that the applicant committed sexual abuse of his granddaughter obviously formed part of the reasons for there being no relationship between them in 2014, it was not, as the applicant would have it, that it was the sole reason why their relationship disintegrated. Furthermore, in my view, the relationship had already disintegrated before those allegations were raised. They provided further reason, together with the applicant’s further, serious violence for the relationship to remain in the state of disintegration until the testator’s death and for his exclusion of the applicant from his will.
- I do not accept the applicant’s evidence that he tried to maintain a good relationship with his father and only reluctantly ceased his efforts to do so out of some faithful respect for his father’s wishes. To accept that evidence would require a rejection of all the substantial evidence in this case to the contrary.
- There is evidence, apart from that of the applicant’s convictions for serious crimes of violence, from which one would conclude that the expressions of fear by the testator, LRM and Mrs LCT are not unreasonable or lacking rational foundation. That evidence is supplied by the statements of the applicant on Facebook which he posted when he did learn of his father’s death.
- Those statements were:
“Life’s changing direction so I am getting rid of all shit losers and users and people that say there [sic] friends or faamaily [sic] that only care about thear selves [sic] and there [sic] pockets a year without contact ur gone.”
“Thank u my dear real friends. Iv [sic] never felt this hurt should have died in that car. It was just as close in jail 3½ for lying scum. The opperations [sic] Iv [sic] endured. LRM and RRNs enough is enough – dad’s gone and when Iv said goodbye which u have denied me. Im coming for u. The damage u done can’t be fixd [sic] now. I am the only true blood T hier u will feel the real pain of what uv [sic] done to me and as anyone that knows me will no [sic] that if I say I do and I won’t stop until u dead or as good as. Free warning if uv [sic] done me wrong ur [sic] gone. U no [sic] who u. Very upset and unpredictable GWG now. Not soft GWG anymore fuck dog scum.”
“Thank u my real friends I didn’t think I was a soft cock after nearly being killed in that car and surviving 3½ years in jail for lyeing [sic] scum but this has really cut me deep and anyone that knose [sic] me will no [sic] I have a big heart but when it’s hurt I’m unpredictable irradic [sic] passionate are very dangerous when I get to say goodbye to dad LRM and RRNs I’m coming for you when I’m done you will know.”
- Although admitting in his affidavit evidence that his posting was a threat, albeit one made when he was upset at having learned of his father’s death and one which he now regrets and realises was unnecessary, in his oral evidence the applicant sought to downplay the posts. He said that it was a “rant” on his personal page which “was really only meant for me”.
- I do not accept that the applicant’s posts can be downplayed in this way. Whilst I accept that the posts were made at a time in which the applicant was emotional having just learned of the testator’s death, they were nonetheless posts which contained threats of revenge, were made towards persons directly in the case of his sister and her husband and indirectly in respect of others, and which included death threats. The threats were also made with reference to anyone who knows him knowing that “if he says he does”, and that when his heart is hurt he is unpredictable, erratic, passionate and very dangerous. In my view, those aspects of the post would be understood, and were intended by him to be understood, by anyone reading them who was aware of his criminal past to be references to the fact that he had violently dealt with others in the past. Placed in that context, the threats become even more intimidatory, as he intended they would.
- This, of course, is conduct by the applicant subsequent to the making of the testator’s will and subsequent to his father’s death. It is not, therefore, conduct directly relevant to the assessment of the relationship between the applicant and the testator at either of those times. It is, however, relevant to an assessment of the reasonableness of the testator’s expression of fear of his son that was made in 2016. The applicant’s subsequent conduct is evidence which supports the conclusion that the testator’s fears were reasonable. It would also be relevant to the issue of disentitling conduct under s 41(2)c) should the jurisdictional issue be resolved in the applicant’s favour.
The applicant’s conduct and character
- Much of what has already been set out in these reasons demonstrates that the applicant is, and was judged by the testator to be, a person of poor character who had engaged in morally reprehensible conduct.
The applicant’s financial position
- The applicant, who is 52 years of age, is in very poor financial circumstances. At the time of hearing his assets comprised a pushbike worth $50 and an unregistered car worth $5,000. Against these assets he has a debt owed to the National Australia Bank of $20,000. His fortnightly expenses run to some $1,080. This includes $130 for medical costs including medication.
- The applicant’s only source of income is a disability support pension. In late August 2009 he suffered quite severe injuries in a motor vehicle accident, as a consequence of which he is unable to work. His fortnightly income from the pension is $840. Therefore, he has a fortnightly deficit of $200.
- The report of occupational therapist, Gordon Siebel prepared in respect of the applicant’s claim for damages for his personal injuries sustained in the motor vehicle accident summarises his occupational outlook as follows:
“He is currently commercially unemployable and further significant improvement in his functional capacity will be necessary before he can begin to contemplate a durable return to work. He will realistically find it very challenging to source an appropriate job and is, on balance of the evidence available, likely to remain off work in the longer term. From my experience in occupational rehabilitation since 1993 most injured persons find it very difficult to return to work.”
- His claim for damages was ongoing at the time of the hearing of the application. His legal costs associated with those proceedings were said to be about $207,000. Liability is not in issue in the proceedings, the applicant having been injured when a backseat passenger. He said that the insurer had offered to settle the action by paying him $100,000. He said that he had offered to settle for $200,000. He said that his former “dodgy legal team” tried to get him to accept the $100,000 offer which “didn’t even make the base of their bill”. He had deposed to the legal bill from those lawyers having been $106,395.90 (inclusive of $30,753.90 outlays). From that, it would appear that the insurer’s offer of $100,000 was inclusive of costs. The applicant did not say whether his offer of $200,000 was inclusive or exclusive of costs. If inclusive, then it would appear that the applicant himself had offered to settle on a basis that would not cover his legal expenses.
- He said that there was to be a further compulsory conference. If the proceedings did not settle at that conference it would proceed to trial.
- Prior to the accident the applicant was working full time as a concrete pump operator, earning in the order of $1,200 gross per week. Given those earnings and Mr Siebel’s assessment of the applicant as commercially unemployable, an offer to settle the whole action for $200,000, even excluding costs, would seem to considerably discount any future economic loss component.
- The applicant has a second claim for personal injuries alleged to have been sustained when assaulted by a prison officer when in jail during his most recent prison term. In 2017 he had been sentenced to 18 months’ imprisonment for dangerous operation of a motor vehicle. He was to be released on parole after six months. He alleges that an officer rammed his head into a concrete wall several times and continually lifted his handcuffed wrists upwards from behind his back and continually slammed his head into a table. He claims to have suffered injuries to his face, legs, hip, head and shoulders as well as psychological injury.
- Although the applicant has two ongoing claims for damages, in one of which he may receive substantial damages for past and future loss of income, this matter can proceed on the basis that the applicant has demonstrated that he is in poor financial circumstances and that he is need of support.
- Those circumstances are to be contrasted with the statement in clause 10 of the testator’s will that he had made no provision for either the applicant or LRM “as they are both financially stable”. There is no evidence which would support the conclusion that the applicant was financially stable in March 2014. The opposite conclusion would be reached. In the 5 June 2016 letter there is no indication that the testator gave further consideration to the applicant’s financial circumstances.
The relationship between the testator and other beneficiaries
- As already discussed, each of the other beneficiaries who were to share in the residue of the testator’s estate were his three granddaughters, the daughters of LRM. It would seem that the testator had a close relationship with his granddaughters. He spent each Christmas with LRM and her family. He also visited LRM’s family every Sunday morning until he was unable to drive. Two of the granddaughters, AMM and LMM spent a lot of time with the testator when he was receiving chemotherapy in hospital. This also provided relief to LRM who was providing him care.
- I would conclude that at the time of making his will and leading up to his death the testator has a better relationship with his granddaughters then he did with the applicant; that relationship being non-existent.
The financial circumstances of the beneficiaries
- AMM is a single mother of a daughter who would now be seven years old. The child suffers from autism and attention deficit hyperactivity disorder. She requires significant educational support.
- AMM has limited assets; only a family car. She works as a landscape conservation worker and is required to drive considerable distances in her work.
- MEM lives in supported accommodation. She suffers from autism and epilepsy. She has approximately $30,000 in savings which are managed by the Public Trustee. The savings come, largely, from a $15,000 inheritance from her paternal grandmother and a $10,000 victim of crime compensation award.
- LMM is the youngest of the granddaughters. At the time of the hearing she lived at home with her mother. She had employment at a local supermarket but an injury from which she was then suffering was precluding her from getting many shifts. She wishes to continue with her studies.
- From this evidence I would conclude, generally, that each of the residual beneficiaries had some need for support. None of them are in a strong financial position.
- In Vigolo v Bostin Gleeson CJ observed:
“The statute did not confer new rights of succession. It did not respond to the mischief identified by reinstating a right akin to a dower, or otherwise by creating legal rights of inheritance. It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification. The statute gave courts a discretionary power to make orders which would have the legal effect of altering the provisions of wills.”
“Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”
- Pembroke J went on to observe:
“Many years ago Sir Owen Dixon said in Pontifical Society for the Propagation of the Faith v Scales (1961-2) 107 CLR 9 at 19 that it was never intended by the legislation that “freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his will have only a prima facie effect, the real dispositive power being vested in the court.”
There are sound practical reasons for not encroaching too readily on the testator’s freedom of testamentary disposition and especially not in accordance with abstract concepts such as fairness or the misguided notion that there should be equality between the children of the testator. In Pontifical Society for the Propagation of the Faith v Scales (above) at 20 Dixon CJ articulated the unique difficulty which these cases present with the following memorable apophthegm:
‘The difficulty is that the court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his.’
It’s to similar effect with some observations of Taylor J in Stott v Cook (1960) 33 ALJR 47 at 453-4, who explained that the reason why a court does not have a mandate to rework a will according to its own notions of fairness, is because such an approach would serve justice no better than:
‘… acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics.’”
“These observations stand as a reminder that the testator is often far better placed than the court to make a just assessment of all the claims on his or her estate, and that many material matters known to a testator may not surface by the time a claim for provision is adjudicated upon, or, where matters do surface, the materials made available to the court may depart substantially from the true facts as known by the testator. That provides a very sound reason for the court to be slow to depart from the testator’s testamentary wishes (Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at 20).”
- In the latter, Young J had said:
“I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent upon them financially and morally; see for instance Scales case at 19.”
- White J observed that this passage had been approved by the New South Wales Court of Appeal in Palmer v Dolman.
- In my view, those observations referred to above as to freedom of testamentary disposition should be borne in mind in the determination of this case. The will itself, apart from its statements as to the applicant’s financial stability, and the letter of 5 June 2016 demonstrate that the testator himself was, as White J said in Kay v Archbold, “far better placed than the court to make a just assessment of all the claims on his … estate.”
“In my opinion the expression ‘moral claim’ has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects the duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards. What is right and proper and thus what the wise and just testator must do, is not determined by the ‘character and conduct’ of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lessor or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances. Taking a practical example, a testator is obliged by reason of the legislation to make greater provision for a daughter who has spent many years at home with the testator than for a daughter who has left the home early and thereafter for no good reason has little or no contact with their parent. Compare Scales case, above. Even in the case of conduct disentitling the alleged behaviour must be looked at from the view point of the testator and the test has been stated as requiring proof of defects in character or conduct of such a nature ‘as would ordinarily move a just spouse or father to take them into consideration when making his testamentary disposition’: Wenn v Howard  VR 91 at 95.” (emphasis added).
- In this case when the conduct of the applicant is looked at from the viewpoint of the testator, it can be seen that the applicant’s behaviour did affect the testator such that he felt, in good conscience, that he should make no testamentary provision for his son. It is clear that he gave the issue much consideration. His decision was reflected, first, in his will made in 2014. The terms of clause 10 of the will clearly demonstrate that the testator gave consideration to whether he owed a moral or legal duty to provide for his son from his estate in the context of their relationship.
- It was explained in detail in his letter of 5 June 2016. It was a matter discussed with his former wife, the applicant’s mother, with them both being resolved and determined to disinherit their son because of his conduct and the nature and extent of their respective relationships with him. It found further expression in his decision not to make provision for his daughter either within the will.
- The testator’s reasons which caused him to determine to make no provision in his will for the applicant centred upon the absence of a relationship between them. That absence of a relationship was the direct function of the applicant’s conduct and character. Notwithstanding the applicant’s attempts in these proceedings to portray them as otherwise, I have found that the expressions of the testator about these matters in his will and in the letter of 5 June 2016 were his genuine and considered views held on reasonable grounds.
- In the written submissions on behalf of the applicant, the submission is made that the applicant was the testator’s only son. This submission seems to suggest some primacy of obligation of a progenitor toward male progeny. To the extent that it may do so, I reject the suggestion. I also reject the suggestion (as it seems to be made) that this fact alone would cast an obligation upon the testator to provide for the applicant in his will and that in the absence of such provision will, of itself, carry the applicant across the threshold of the jurisdictional question.
- Equally, I would reject the suggestion that the mere absence of a relationship between the testator and applicant would justify disinheritance. However, I consider that the absence of that relationship because of the conduct and character of the applicant which so apparently affected the testator such that he concluded, in good conscience and after careful consideration, to exclude the applicant from his will, would be viewed by the community as right and proper notwithstanding the applicant’s straitened financial circumstances.
- In my view, the application fails on the jurisdictional question. It should be dismissed.
- I would add that if the applicant had satisfied the jurisdictional question, his conduct before and after the testators death would disentitle him such that the discretion conferred by s 41(2)(c) of the Succession Act would be exercised against him.
- The legal costs in this matter are considerable. The combined costs were estimated to be approximately $160,000, $85,000 of which are the applicants. As can be seen, the total costs if paid from the estate would represent approximately 40 per cent of its value.
- I will hear the parties as to costs.
 (1994) 181 CLR 201 at - per Mason CJ, Deane and McHugh JJ.
 The case concerned ss 7 and 9 of the Family Provision Act 1982 (NSW) which are analogue provisions to s 41 of the Succession Act 1981.
  AC at p 476.
 (1979) 143 CLR 134 at 147-148.
 Footnotes omitted.
 Mark Joseph O'Donnell v Colleen Mary Gillespie & Anor  QSC 22 at ; Hastings v Hastings  NSWSC 1310 at .
 As is the will itself: Manly v The Public Trustee of Queensland  QSC 388 at .
 Ibid at  applying Hughes v National Trustee Executors and Agency Company of Australia Ltd at 150.
 Exhibit 12 and Exhibit LJC1 thereto.
 Transcript 2-112, line 20.
 Transcript T-112, lines 20-25; 2-118, line 20.
 Transcript 2-112, lines 39-43.
 Transcript 2-113, lines 19-22.
 Transcript 3-31, lines 3-12; 3-34, lines 4-7.
 Transcript 3-31, lines 10-22.
 Exhibit 9, para 23.
 Exhibit 2.
 Exhibit 4 at para 18(a).
 Exhibit 3 at paras 57-59.
 (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ.
 Transcript 1-37, lines 12, 14, 46; 1-72, lines 1-6.
 Section 79(2) Evidence Act 1977.
 Section 79(3).
 Transcript 1-40 ll 19-23.
 Transcript 1-55 l 16.
 Transcript 1-57 l 37.
 Exhibit 3 paras 23, 24 and 25.
 Exhibit 5.
 Transcript 1-54 l 36.
 Exhibit 3.
 The reasons for the Court of Appeal for dismissing the applicant’s appeal against his conviction and sentence were exhibited to, and extracted in, an affidavit of the respondent, LRM, which became Exhibit 14. However, the paragraphs which referred to and exhibited, and extracted, those reasons were objected to and counsel for the respondent conceded the objection without argument. They did not, therefore, become part of the evidence.
 Transcript 1-59 131.
 Exhibit 3 paras 70-73 and transcript 1-64 ll 45-1-65 l 5.
 Exhibit 13 paras 47-48 and transcript 3-29 ll 12-41.
 The report formed part of Exhibit GWG T2 to Exhibit 4.
 Exhibit 10.
 That is after payment of the respondent’s costs. It does not take into account any order requiring the applicant’s costs to be paid from the estate.
 Transcript 1-4 ll 8-15.
 Exhibit 3 para 77.
 Transcript 1-62 ll 13-45.
 Exhibit 3 para 64.
 Exhibit 5, para 5(d).
 Exhibit 5, para 5(e).
 Exhibit 3, para 26.
 Exhibit 14, para 15.
 Transcript 2-47 ll 24-46.
 Exhibit 9, para 5. As already noted, the applicant was convicted of possessing utensils but not of possessing drugs.
 Exhibit 9, para 9.
 Exhibit 9, para 19 and transcript 2-52 ll 33-35.
 Transcript 2-105 L 11.
 Exhibit 12, para 9.
 Transcript 2-105 L 25.
 Transcript 2-106 ll 7-14.
 Exhibit 12, para 4.
 Exhibit 12, paras 5, 6 and 7.
 Transcript 2-110 L 27.
 Exhibit 12, para 16 and transcript 2-115 L 32.
 Transcript 2-115 L 35.
 Exhibit 12, para 16.
 Transcript 3-30 L 7.
 Exhibit 11, para 2 and exhibit 13; LMR3 being the settlement letter which records settlement of the sale having been effected on 30 April 2008.
 Exhibit 11, para 4.
 Exhibit 11, para 3.
 Transcript 2-95 L 40.
 Transcript 2-95 L 39 to 2-96 L 12.
 Transcript 2-96 L 19.
 Exhibit 3, para 49.
 Exhibit 12, para 26.
 Exhibit 9, para 15 and transcript 2-50 ll 24-29.
 Transcript 1-66 ll 15-26.
 Exhibit 2.
 Exhibit 5.
 Transcript 1-71 L 40.
 Bail Act s 11(1)(a).
 Bail Act s 11(1)(b), (c) and (d).
 Bail Act ss 8 and 11.
 Exhibit GWGT5 to Exhibit 5.
 Exhibit 5, para 5(x)(y).
 Transcript 1-83, lines 23-27.
 Exhibit GWGT2 to Exhibit 4 at para 42.
 Transcript 1-70, line 27.
 Transcript 1-67, line 45.
 Exhibit 7; notice of claim for damages.
 Exhibit 13, para 57.
 Exhibit 13, para 58.
 Exhibit 13, para 60.
  221 CLR 191 at .
  NSWSC 146 at .
  NSWSC 1232 at .
 Supra at -.
  QSC 22 at .
  NSWSC 254 at .
 (1962) 107 CLR 9 at 19.
 Unreported Supreme Court of New South Wales, 17 May 1996 at 30-31.
  NSWCA 361 at -.
  QSC 385.
  3 VR 803 at . His Honour noted at footnote 30 that Young J in Walker v Walker (op cit) had observed the same passage to be “a masterly exposition”.
 Applicant’s written submissions, paras 58 and 82.
- Published Case Name:
T v R & Anor
- Shortened Case Name:
T v R
 QDC 220
08 Nov 2019