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Argent Law

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Recently, the Supreme Court of New South Wales case concerning Colleen McCullough’s Will and Estate, generated a lot of media attention and interest.

Ms McCullough was one of Australia’s most famous and successful writers in the 1970s.  She enjoyed international literary success, including winning multiple awards including for her historical series on Ancient Rome.  Prior to establishing her successful literary career, she had achieved great success in Australia, the UK and USA as a neuro scientist.

McCullough died on 29 January 2015 at aged 77, from renal failure after experiencing deteriorating physical health in the previous years. She was survived by her Husband, Ric.

Given McCullough’s international fame, it is little wonder that when a Supreme Court Application was bought in New South Wales by the University of Oklahoma regarding her will, the public were interested to know the outcome.

The Colleen McCullough Case

McCullough had left her entire Estate to her Husband Ric in a Will signed by her in late 2014 or early 2015 (the Court had a number of options for purported Wills to consider). The University of Oklahoma claimed in Court that none of these were valid Wills. The University claimed the most recent (and only) valid Will, was signed by Colleen McCullough on 12 July 2014 – during a period of separation from Ric.  That Will-  signed on 12 July 2014 – left Colleen’s entire Estate to a Foundation at the University.

Further, the University argued that even if the wills of late 2014/early 2015 were valid wills, the Court should not give effect to those wills because McCullough had been coerced by Ric into drafting and signing them.

On 20 July 2018, the Supreme Court of New South Wales delivered its judgement.  The judgement didn’t tell us anything new about Wills and what needs to be done to create a valid will. Nor did the case tell us anything new about when a Will can or should be deemed invalid due to coercion, duress or unconscionability.

The case did, however, confirm a number of legal principles already widely known and applied in the law of Wills in every jurisdiction in Australia.

The Supreme Court of New South Wales found the Wills from late 2014/early 2015 were valid because:

  • The testator (McCullough) had testamentary capacity – that is – she was mentally competent to make the Wills;
  • The Wills contained her testamentary intentions – that is – she intended the document to be a will and evidence her intentions on how she wished for her Estate to be divided;
  • The Will was in writing – as required under the law in New South Wales – and as is the case in all States and Territories of Australia; and
  • The Will was signed (with assistance from others as is permitted under the law in New South Wales and all other States and Territories and Australia).

In coming to this conclusion, the Court was applying the long-standing authority of Hatsatouris&Ors v Hatsatouris [2001] NSWCA and Stojic v Stojic [2018]  – a more recent Court of Appeal Case from the Supreme Court of NSW –  which together outline the requirements of a legally valid Will in the State of New South Wales, and which reflect the status of the law in this area all throughout Australia.

Further, the Court found there was no reason why the Will should not be given effect because of allegations that McCullough had been coerced by her Husband Ric into creating the new Wills which left her entire Estate to him (instead of the Foundation at the University of Oklahoma).

In Conclusion

The court concluded:

  • There was no evidence that Ms McCullough had been coerced by Ric into making the Will of late 2014/ early 2015 or that she was not acting of her own volition when she did so.
  • There was no evidence that Ric had exerted upon her undue influence because:
  1. It was agreed by all parties that Colleen was not mentally impaired in October 2014 or at all;
  2. Colleen had not been neglected;
  3. One of Colleen’s lawyers who gave evidence in support of the University’s case, gave evidence that was unsatisfactory to the Court in many respects;
  4. The lawyers for the University had not cross examined Ric (and therefore hadn’t sought in the Court case to challenge his evidence);
  5. Colleen had been represented by her solicitor at the time of creating the new Wills and the documents were drafted by her solicitor and not Ric;
  6. Ric had arranged the appointments for Colleen and her lawyer, and there was no evidence that he had tried topressure her into signing any Wills without her lawyer being there; and
  7. The only evidence the University relied on was the testimony of witnesses who were found by the Court to not be credible, and Colleen’s carer’s evidence in particular was deficient regarding key facts in dispute.

As a result of all the above findings, the Supreme Court of New South Wales determined the late 2014/early 2015 wills in which all McCullough’s Estate was left to her husband Ric was upheld, and Ric is therefore the sole beneficiary of McCullough’s estate.

Accordingly, the University of Oklahoma failed in its attempt to have the wills of late 2014/ early 2015 declared invalid or otherwise set aside in favour of the 12 July 2014 Will in which McCullough’s entire Estate had been left to a Foundation at the University.

What can I do when writing my Will?

If the recent case of Colleen McCullough’s Estate has roused your interest or got you thinking about your own Will and how to prevent it being challenged in future, our experienced Estate Planning team at Argent Law can assist you to prepare a legally valid will that can be relied on so far as the law permits to ensure your wishes for your Estate are given effect.

Likewise, if you believe you are an executor/executrix of a will and need assistance from a lawyer to fulfil your obligations as executor/executrix – Argent Law can give you all the support, advice and representation you need.

Finally, if you believe that you may have grounds to challenge a Willour experienced team can guide you through this process, from beginning to end.

If you would like to arrange a confidential advice session with an experienced Estate and Will Lawyer, please call 03 9571 7444 today.

 

melissa will lawyer
Melissa Patterson
melissa@argentlaw.com.au