I’s taken me a while, but back to [2017] NSWSC 666.
You will recall that GS, a pharmacist who had been generous to many or at least relaxed in his attitude to recovering monies lent to many, died suddenly aged 65, survived by his two nieces, AC and CC, in whose favour an informal will was found.
OY disputed the validity of the will. He said he was GS’s surviving de facto partner. OY said this relationship, of many years’ standing, had been a secret.
Obviously there must have been some kind of a relationship between GS and OY. GS had advanced substantial sums of money to OY- well above the other amounts known to have been advanced by him to others – and he had given OY the means and authority to conduct his bank accounts.
To me, as a gay man, OY’s claim of there being a sexual relationship is a plausible one. On reflection, perhaps that is putting it too simply. To me it is plausible that, if there was a sexual relationship, it would have been conducted in complete secrecy in the way that OY alleged.
On the other hand, it is very easy to make up a story about someone who is dead. A court must scrutinize carefully any claims of dealings with deceased persons and especially where those claims rest entirely on the word of the surviving person who makes the claim.
Lawyers often talk about whether one judge or another is a good “draw” for their client. This preserves what in some ways must be a legal fiction, that there is some random process of selection of which judge hears a case. Often it may be that the selection of a particular judge from those available is a matter of chance, but the selection of judges itself is clearly far from being so.
In any case, it doesn’t look as Justice Slattery was a very good draw for OY. As he said at paragraph [28] of his reasons for judgment:
The Court soon began to doubt [OY]. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with [GS]. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms [SK], into believing he was not with [GS] at night. His story of lying to his first wife is barely worthy of credit. But the fact that [OY] was prepared to parade such studied trickery carries its own significance. Why would one who shamelessly avowed deceit of a spouse, not practise deceit on this Court?
When I first read this, I thought “Whoah!” There seemed to be a kind of paradox – a variant on “all men [sic] are liars” – in this case, “all closeted gay men are liars.” So is no self-confessed closeted man to be believed?
What Slattery J found “barely worthy of credit” (credit here means worthiness of being believed rather than reflecting well on the teller) was OY’s claim that he used to go to a gambling club before leaving without placing a bet to spend time with GS. OY said he did this so that he could produce the ticket to his then wife (who had already complained that he saw too much of GS) as, in effect, an alibi.
Slattery J didn’t accept this. I’ve inserted in bold the numbers for his reasons:
[211] (1) First, it is difficult to accept that [OY] could have kept up this pretence for years, when he claims his visits to the deceased were regular. (2) Secondly, his claimed alibi was unstable. Other people frequented the same club and would have been able to see that [OY] had left to go elsewhere. (3) Thirdly, such an alibi was likely to create quite separate domestic concerns: that he was gambling away the family’s money. He sought to answer that threat by explaining that this poker club was not one where gambling for money occurred. But that does not meet the problem that to a person being shown sign-in slips at a gambling club it may not have looked that way. (4)Finally, [OY]’s case of arranging regular assignations with the deceased behind his first wife’s back infers that the deceased was complicit in this deception. How else could the deceased believe that a married [OY]t could spend so much time with him?
[212] (4A) But that is not consistent with the deceased’s character. All the evidence about the deceased points to a man who (4A1) had an open and friendly nature, (4A2) had deep moral feelings and religious scruples especially about his sex life, (4A3) maintained warm relationships with family and friends and (4A4) had never been involved in fraudulent activity. But [OY] seemed comfortable to accept that the deceased was as dishonest as he was in conducting this relationship.
That’s a lot of reasons. Maybe 2 is the best, were it not that many affairs are conducted under cover of equally risky alibis. My own skepticism would be of the elaborateness and consistency of the claimed ruse rather than its fragility – why not a variety of garden husbandly lies? 3 assumes OY’s wife did not know/believe that no money was gambled at the club. I don’t think I would be as ready as Slattery J is to take 1 and 4 (4A4 in particular is a stretch – how can you prove such a negative?) as from the start tending to preclude the truth of OY’s account.
There’s a lot more in the judgment and the judge had plenty more reasons to which I find myself without the energy to do justice. The thing is, unlike the rest of us who can afford a Marabar-caves sort of indeterminacy, he did have to make up his mind. That’s his job.
From which you’ll probably realise that Justice Slattery totally dismissed OY’s claim, and upheld CC’s claim for repayment of all monies paid to or taken by Okan, with interest. OY’s story was just that: the story OY had to tell if, following GS’s sudden death, he was to avoid having to repay the money he had already received from GS and hang on to the money he opportunistically grabbed by continuing to use after GS’s death his capacity to operate GS’s accounts. That OY had obtained monies on such a scale and authority to operate GS’s accounts in this way was not to be attributed to any sexual relationship between them, but rather that (at [312]) OY was an “intuitive and manipulative individual” who well understood and was close enough to take advantage of GS’s generosity.
So much (so far as the monies obtained by OY and his company in GS’s lifetime were concerned) for any credit in heaven which GS professed a hope to attain on account of funds unrepaid at his death.
Nieces and intestacy
Why, asked CC (rhetorically), would she seek to forge a will as OY claimed she had when, as GS’s nieces, she and AC stood to benefit anyway under what looked like otherwise being intestacy?
It is possible that this emerged during submissions as a result of a remark by the judge himself. As he said at [688]:
the Court did raise the hypothesis in submissions that [GS]’s nieces would take on [GS]’s intestacy. But in the course of preparing these reasons it is clear that hypothesis was based on an erroneous assumption as to the present State of New South Wales law at the time of the deceased’s death. The nieces or nephews of an intestate in New South Wales have no entitlements; the State of New South Wales would be entitled to his estate: Succession Act, Parts 4.3 and 4.5.
I think his Honour’s first instincts were better than his afterthought.
This is the contents page to parts 4.3 and 4.5 of the Succession Act (part 4.4 deals with indigenous families) to which his Honour refers:
PART 4.3 – DISTRIBUTION AMONG RELATIVES
Note127. Entitlement of children
128. Parents
129. Brothers and sisters
130. Grandparents
131. Aunts and uncles
132. Entitlement to take in separate capacitiesPART 4.5 – ABSENCE OF PERSONS ENTITLED
136. Intestate leaving no persons entitled
137. State has discretion to make provision out of property to which it becomes entitled
If you go by the contents listing alone, there is no section which, going by the headings, deals with the entitlements of nephews or nieces. However, section 129 is as follows:
129 Brothers and sisters
(1) The brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves:
(a) no spouse, and
(b) no issue, and
(c) no parent.
(2) If no brother or sister predeceased the intestate leaving issue who survived the intestate, then:
(a) if only one survives-the entitlement vests in the surviving brother or sister, or
(b) if 2 or more survive-the entitlement vests in them in equal shares.
(3) If a brother or sister predeceased the intestate leaving issue who survived the intestate:
(a) allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and
(b) the presumptive share of any such deceased brother or sister is to be divided between the brother’s or sister’s children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child’s presumptive share is to be divided between the child’s children (again allowing for the presumptive share of a grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.
If I am reading this aright, contrary to his Honour’s observations, nieces and nephews (and for good measure any intersex children of siblings) do have entitlements under intestacy in the event that their parents had an entitlement but predeceased the intestate person. Siblings have an entitlement if a person dies without parents, spouse or issue.
If GS died without leaving a will, under s 129(1), GS’s parents having predeceased him and he dying single and childless, his brother would have been entitled to the whole of his estate. GS’s brother having predeceased him, under s 129(3)(b), that brother’s daughters, ie, AC and CC, his nieces, would have been entitled to share that brother’s presumptive share equally.
Postscript
In response to a complaint from GS’s family, understandably aggrieved that his name has been dragged through the mud of accusations by OY which have been proven to be false, I have removed GS and OY’s names from the body of this post and the previous post on this case. I have also scrubbed any identifying names from the comments to that post.
Post post script
Meanwhile the case has gone on, including a pretty furious (and dismissed) application by CC that OY’s solicitor and barrister pay her costs. As a lawyer myself, I hate that sort of application – I suppose out of self-interest. The application was dismissed basically on the grounds that it was not up to OY’s solicitors and counsel to prejudge the truthfulness of OY’s instructions to them. See [2019] NSWSC 584 at [47] and [48}.
You might have thought that, as a barrister herself, CC could have recognized this before bringing the application.
The judgment also deals at [118] to [137] with an eyebrow-raising aspect of conduct of the case by CC which put OY unnecessarily to additional costs, though not (so his Honour had already held in the main trial when the issue was raised in relation to CC’s credibility) deliberately. CC incurred an adverse costs for this, though not (because not deliberate) on the indemnity basis.