5518 7777 * "No Win - No Fee" on plaintiff TPD, Income Protection and Family Provision Application estate claims * admin@leelawyers.com.au

The Estate of Colleen McCullough [2018] NSWSC 1126

This case concerned the estate of the late Dr Colleen McCullough, a prominent writer. The matters at issue in the case was the validity of the will that assigned the whole of Dr McCollough’s estate to her husband Mr Cedric Robinson (Ric), superseding the previous will which left the entire estate to the University of Oklahoma Foundation Inc. The matter was brought forward by Selwa Anthony,  a long-time friend of Colleen and an executor of the ‘Oklahoma Will’.

LEGAL ISSUES

Several issues came before the court in this matter:

  1. Whether the informal documents signed by the deceased and prepared by her solicitor constituted a new will.
  2. Whether the deceased was coerced into signing those documents.
  3. Whether a handwritten and initialed codicil could function as a will.
  4. Whether the fact that Dr McCollough appointed someone other than her husband as her power of attorney could be construed as a fact against the strength of their relationship.
  5. Whether the normal rules of probate litigation payment are to be followed.

JUDICIAL FINDINGS

It was determined that even if the date of the signing of the dipositive page document and the copy of such could not be determined, it was clear that Dr McCollough’s signature is present on them and signified her consent to the alteration of her will.

The judge made a legal inference that it was believed by Ms Coleman (Colleen’s lawyer who drafted the will) and Ric’s solicitor Mr Brown that the dispositive page and the accompanying documents could function as a valid will even though they did not comply with the formal requirements, such as by section 6 of the Succession Act 2006 (NSW).

Importantly, the judge found that there was no evidence to support the claim that Colleen was being abused by her husband and therefore was coerced into changing her will. Even though there have been difficulties in their relationship, including an affair, the judge has found that they did not lead to a conclusion that Ric would be left entirely out of her will.

As a separate issue, in New South Wales law, the handwritten and initialed codicil dated January 2015 did not meet the requirements of being able to function as a new will and therefore did not have the power to revoke an earlier will.

The power of attorney was extended to Ms Martinez instead of Ric upon the advice of Ms Coleman to ensure that there was independence maintained between Colleen and Rick in relation to real estate owned by her as there have been concerns presents regarding Ric’s approach to money.

Also, the case does not fit under the usual rule of probate cases where costs are borne by the estate, as the cause of the matter was the solicitor of the deceased not drafting the new will in an appropriate manner

DECISION

The will that was signed on 24 October 2014, giving the entire estate to Ric, represents the current will of the deceased and is therefore found valid.

Each party were ordered to pay their own costs.

COMMENT

Significant legal costs were borne and time spent by several parties on a will that in a perfect world, should have been easily amended to function as the final document.

We suggest this case is an illustration of why estate planning should be handled by competent solicitors.