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The Thorny Birds of McCullough's estate

“From the outside, Australian novelist Colleen McCullough's home on Norfolk Island is prim and picket-fence perfect, a long tree-lined driveway leading to a white two-storey colonial house in a leafy garden. Inside, it's a different story …” Extract from an article in Traveller.com.au.

Colleen McCullough (or ‘Col’ as the court case found she was called) famously wrote The Thorn Birds, a huge hit in the 1980s and later made into a television show. Growing up in Ireland, I remember the whole country being shocked at this tale of a woman having a relationship with a priest. Shocked but we had to watch!

Not quite the quiet life

Ms McCullough moved to Norfolk Island, perhaps for privacy or a quiet life. However, that peace did not follow her passing as recent proceedings in the NSW Supreme Court publicly analysed aspects of her family and health in a dispute about her estate. The decision in this dispute was recently handed down by the Court.

The famous author would perhaps have been pleased to write such a great story, with her estate dispute finding a broad audience but she would not have relished being the main character.

The parties giving evidence seemed caught up in the drama of a wealthy famous woman. There were reports of her husband Ric being in “a murderous mood” and evidence that Ms McCullough herself could be “cranky and impatient … and difficult and demanding".

The Court admitted that it did not get to the bottom of what exactly happened and that certain things were a mystery. The Judge too seemed inspired by literature and explained his difficult position, “If the track of the truth in this matter is to be found, it is narrow and poorly lit.”

Testamentary documents had been prepared by the deceased’s friend, Ms Coleman, who was a lawyer and also by her husband’s lawyer.

The Court was doubtful about much of the evidence that led to a will being produced which failed to include a suspicious page that purported to distribute the entire estate to a foundation in Oklahama. “F@#k Oklahama”, the late author allegedly shouted at one point. We were invited to believe that this meant she did not want the foundation to be the main beneficiary of her will. The Foundation issued proceedings.

On Ms Coleman’s evidence, Ms McCullough initialled the page of the Oklahoma Will bequeathing her estate to the Foundation, but neither of the two witnesses initialled or signed that page nor the page setting out executor powers.

The courtroom drama

The Judge set out some fairly extensive segments of the cross-examination of Ms Coleman relating to her discussions with Col and Ric because of their importance to the critical issues in this case and to Ms Coleman’s credibility: “Listen, let's leave the mind reading to one side. She has told you, ‘Give him what he wants.’ One, two, three, four, five words - all one syllable. Not hard to understand, are they?”

The Court found that Ms Coleman admitted to a course of conduct that is entirely inconsistent with what is required of a practising solicitor, namely:

  • Asking a person (Mr Quintal) to add his initials to a document as a witness when he had not seen the person whose signature he was purporting to witness sign that document, and
  • Providing a document purporting to be the will of her client to the husband of her client in order to deceive him into believing that his wife had made a will in his favour.

There was evidence which points to significant involvement of a carer named Ms Wright. She called the police and told them that Col feared for her safety. She most likely organised a medical certificate from a Dr Metcalfe, and Ms Wright was in a relationship with Dr Metcalfe at the time!

The judgment is clear and we think it is helpful to quote directly from it - while legal issues may be complex, a consideration of people’s behaviour is, well, interesting.

The judgement

The Court said: “In other circumstances, the evidence of a nurse or carer with no benefit to be obtained by either of two (or three) contested wills would be important evidence in assessing where the truth lies. I am, however, not able to accept Ms Wright as a truthful non-partisan witness whose evidence can be accepted without corroboration. Ms Jackson is another carer whose evidence cannot be safely relied on without independent corroboration, although for different reasons”.

The Judge concluded: “The matters referred to [above] lead me to conclude that, whatever the imperfections in their marriage … the situation by October 2014 … was not so acrimonious as to necessarily preclude as a possibility that Col would decide to reinstate Ric, her husband of more than 30 years, as the sole beneficiary of her estate.”

“It is not unheard of that a relative or close friend of a married person holds strong views about the spouse’s unsuitability and the viability of the marriage which views, even if made known, are not accepted or acted upon by the married person.”

The Court found the will leaving the entire estate to husband Ric was valid.

The Court had a lot to say about the lawyers: “The need for this litigation has been caused by Ms Coleman and for two reasons. The first is that she failed to prepare a fresh will in the usual fashion and instead decided that she could substitute one dispositive page for another. The second is that she propounded a version of events by which she sought to justify [her actions]". 

Perhaps because of the way the case was run, he ordered that each party should bear his or her own costs.

"It could happen to a bishop"

The Foundation lost, Ric won, and many reputations were damaged. The drama of a life of ups and downs can get concentrated and messy at the end. It is human nature to want to have a final say. In Ireland, we say: “It could happen to a Bishop”!

The courts take no pleasure in managing such disputes and sometimes the only winners are the lawyers. We work with clients to avoid going to court but sometimes it is inevitable and we will fight for them in court if necessary so that their wishes are honoured.

Col explained to Ric that movie rights do not necessarily turn into movies. We wonder who will make the movie of this story!

 

Donal Griffin is a Principal of Legacy Law, a legal firm specialising in protecting family assets. The firm is not licensed to give financial advice. This article does not consider any individual circumstances and Cuffelinks does not know the merits or otherwise of the case.

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