Posts Tagged ‘[2017] NSWSC 666’

Conundrum 2

July 27, 2017

I’s taken me a while, but back to Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666.

You will recall that George Sclavos, 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, Anna and Cleopatra, in whose favour an informal will was found.

Okan Yesilhat disputed the validity of the will. He said he was George’s surviving de facto partner. Okan said this relationship, of many years’ standing, had been a secret.

Obviously there must have been some kind of a relationship between George and Okan. George had advanced substantial sums of money to Okan – well above the other amounts known to have been advanced by him to others – and he had given Okan the means and authority to conduct his bank accounts.

To me, as a gay man, Okan’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 Okan 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 Okan. As he said at paragraph [28] of his reasons for judgment:

The Court soon began to doubt Mr Yesilhat. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with George. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms Susan Katri, into believing he was not with George at night. His story of lying to his first wife is barely worthy of credit. But the fact that Mr Yesilhat 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 Okan’s claim that he used to go to a gambling club before leaving without placing a bet to spend time with George.  Okan 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 George) 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 Mr Yesilhat 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 Mr Yeslihat 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, Mr Yesilhat’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 Mr Yesilhat 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 Mr Yesilhat 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 Okan’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 Okan’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 Okan’s claim, and upheld Cleopatra’s claim for repayment of all monies paid to or taken by Okan, with interest.  Okan’s story was just that: the story Okan had to tell if, following George’s sudden death, he was to avoid having to repay the money he had already received from George and hang on to the money he opportunistically grabbed by continuing to use after George’s death his capacity to operate George’s accounts. That Okan had obtained monies on such a scale and authority to operate George’s accounts in this way was not to be attributed to any sexual relationship between them, but rather that (at [312]) Okan was an “intuitive and manipulative individual” who well understood and was close enough to take advantage of George’s generosity.

So much (so far as the monies obtained by Okan and his company in George’s lifetime were concerned) for any credit in heaven which George professed a hope to attain on account of funds unrepaid at his death.

Nieces and intestacy

Why, asked Cleopatra (rhetorically), would she seek to forge a will as Okan claimed she had when, as George’s nieces, she and Anna 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 George’s nieces would take on George’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
Note

   127.    Entitlement of children
   128.    Parents
   129.    Brothers and sisters
   130.    Grandparents
   131.    Aunts and uncles
   132.    Entitlement to take in separate capacities

   PART 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 George died without leaving a will, under s 129(1), George’s parents having predeceased him and he dying single and childless, his brother would have been entitled to the whole of his estate. George’s brother having predeceased him, under s 129(3)(b), that brother’s daughters, ie, Anna and Cleopatra, his nieces, would have been entitled to share that brother’s presumptive share equally.

 

 

 

 

A conundrum

July 9, 2017

Maybe we are all unusual people, if you can only look closely enough, but George Sclavos, who for many years conducted a pharmacy at Leppington must have stood out.

From the late 1980s, George, who graduated as a pharmacist in 1973 when he was about 25, owned and ran a pharmacy at Leppington (near Campbelltown).  George never married and you’d have to say that the pharmacy really must have been his life.   He befriended many of his customers, including the local “down and outs” from the caravan park nearby whom he would often invite in after hours to spend time with him after the pharmacy had closed.

George was the “go to” man amongst his fellow shopkeepers at Leppington for making up a float at the start of the trading day.  He lent many people money, but if they didn’t pay him back was apparently content to leave that as something which would rest on their consciences or probably souls (he was devoutly religious) if they failed to repay him.  He told a friend “If I die and they owe me the money maybe God will put that in my credit to cover my sins.”

George was a heavy smoker, and it seems that other aspects of his shopkeeping lifestyle were quite unhealthy.  In 2013, aged 65, he died suddenly at the pharmacy.

George’s older and only brother, his father and his mother had predeceased him in 1980, 1979 and 1992.  He was survived by Anna and Cleopatra, his brother’s daughters.  George had told his nieces that they would find a will in his house.

George had lived since 1983 in a house in Strathfield first owned by his father and later by him.  He was a bit of a hoarder.  His nieces and family friends set about tidying things up in the hope that the will would surface in the process.

A document later admitted to probate as a informal will was found in George’s bible (which was on the table next to his bed), folded around an old photo of Anna and Cleopatra.  This appointed Cleopatra (who is a barrister by profession) as his executor and left George’s estate of about $6 million to her and Anna equally.

But there was another claimant.

Okan Yesilhat claimed he had met George in 1999 when Okan was 17 and George about 51.  Okan said he had been in a sexual relationship with George from that time and was in a de facto relationship with George at the time of George’s death.  Okan said that the document found in the bible must have been planted there and was not a will.  He said that probate of the will should be revoked, in which case (on his contentions) he would take the entire estate as de facto “widower” on intestacy.

As a fall-back Okan claimed family provision on the basis of his asserted relationship with George.  As a fall-back or parallel claim to that, Okan also said that money which he had received from George in George’s lifetime was a gift rather than money that Okan had to pay back. This was about $386K less payments by Okan or his company in George’s lifetime of about $82K – a net amount of $304K.

Okan had also taken money out of George’s accounts after George’s death using means of operating these accounts which George had given him.  Even if you are authorised to take money from someone’s accounts while they are alive, that authority ceases on their death and any money taken out after usually has to be repaid to the estate.  One way or another (as the heir on intestacy or by means of provision in a greater amount) Okan sought to resist having to repay these post-mortem amounts, of about $206K.  Okan had made a further $7-8K of withdrawals from George’s accounts which were reversed by the bank when it stopped the account at Cleopatra’s request.

Anna and Cleopatra knew about Okan, because in 2011 George had told them that he had lent upwards of $100K to Okan for a tyre business on Canterbury Road in Lakemba.  Anna and her husband had visited the business and met Okan not long after that.  You could not blame Anna and Cleopatra for feeling some disquiet about this, let alone about the full picture which came to light after George’s death, not only of the substantial amounts which had passed in his lifetime, but also the post-mortem withdrawals from his accounts.

But Okan’s claim of a 14-year homosexual relationship with their uncle came as a complete shock to them.  As far as they were aware, although unmarried, George had had a number of girlfriends in his life.  There was a bit more mystery over the circumstances in which George had harboured in his home from 2005 to 2008 a (since deceased) married mother-of-five sex worker with a drug problem whom he had met on Canterbury Road.

To Cleopatra and Anna Okan’s claims were not only a shock but a calumny.

Okan for his part maintained that his relationship with George was secret for cultural reasons.  He rubbed salt in to the wound (so far as Anna and Cleopatra were concerned) by claiming that George was dismissive of and said disparaging things about them.

By the time the matter came to trial, it emerged that if Okan was telling the truth, he had his own cultural reasons for keeping his relationship with George secret, including two marriages of his own.  For good measure, witnesses claimed that even when married he was seen consorting with other women.

There was no evidence from anyone, even Okan, of either George or Okan having any other same-sex relationship.

The matter was heard over 21 days in early 2016 before Justice Slattery. It took his Honour over a year to deliver his decision: Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666.

That seems a long time, even if his Honour was off on leave for some of it, though the reasons are certainly lengthy.

If you’re the kind of person who likes to skip to the end of the book to find out the ending, or to look up the endings of TV serials on the internet (I am that kind of person) you can find out more there. Otherwise, you’ll have to wait until I have the energy to write another post.