McGettigan v Coulter & Anor; Coulter & Anor v McGettigan

1. [1]

   Mr John McGettigan (“Mr McGettigan”) is the brother of the late Brian McGettigan, who died on 17 April 2018 aged 81. Brian McGettigan’s wife of 50 years, Beverley McGettigan died on 16 July 2018 aged 80. Rhonda and Glen Coulter (“the Coulters”), are Beverley McGettigan’s niece and nephew and the executors of her last will. These parties are involved in both probate and equity proceedings.

2. [2]

   In his Amended Statement of Cross-Claim in the probate proceedings Mr McGettigan claims that Brian McGettigan made his last will on 16 July 2016 (“the 2016 will”), an instrument which gave the bulk of his estate to Mr McGettigan. The Coulters say that the 2016 will is a forgery. They allege in their Statement of Claim that Brian McGettigan’s last will was made on 19 January 2000 (“the 2000 will”), an instrument which gave the whole of his estate to his wife. They further allege that upon her death, her last will dated 25 May 2016 gave the whole of her estate to the Coulters, an instrument which appointed them as her executors. Probate of Beverley McGettigan’s last will was granted to the Coulters and they now seek a grant of administration cum testament annexo of Brian McGettigan’s 2000 will.

3. [3]

   Mr McGettigan does not contest the validity of Beverley’s 25 May 2018 will. But he contends that Brian McGettigan’s 2000 will is a fabrication. The Coulters in turn claim that Mr McGettigan has no standing to challenge the 2000 will. They say that Brian McGettigan made no will earlier than 2000 and as Brian and Beverley McGettigan had no children, if Brian McGettigan died intestate, his wife would have taken the whole of his estate upon an intestacy.

4. [4]

   Mr McGettigan replies to the challenge to his standing by contending that the Coulters, or Beverley, suppressed a pre-2000 will that Brian McGettigan made in his favour. The Coulters deny these allegations and contend there is no evidentiary foundation for them.

5. [5]

   In the probate proceedings the Court concludes in these reasons that:

   1. (1)

      the 2016 will is a false document created by Mr McGettigan;

   2. (2)

      the 2000 will is the last will of Brian McGettigan and it should be admitted to probate;

   3. (3)

      there is no evidence of any pre-2000 will of Brian McGettigan giving his estate to Mr McGettigan, who has no standing to challenge the 2000 will; and

   4. (4)

      the probate proceedings are dismissed with costs.

6. [6]

   In the equity proceedings by his Amended Statement of Claim Mr McGettigan claims a beneficial interest in “Christmas Lodge” a farm in Tennyson, New South Wales (“the Tennyson property”) and other property owned by Brian and Beverley McGettigan. At the time of their deaths in 2018, Brian and Beverley lived and engaged in horse training and breeding at the Tennyson property.

7. [7]

   Mr McGettigan seeks relief in the equity proceedings to enforce seven inter vivos instruments that he claims he made with Brian and Beverley McGettigan, and in some cases with other persons as well. He claims these instruments confer on him enforceable beneficial interests in the Tennyson property and some of their other property. The Coulters contend that every one of these instruments are a false document created by Mr McGettigan.

8. [8]

   The seven inter vivos instruments that Mr John McGettigan propounds in the equity proceedings fall into two groups. The first group comprises three agreements, a partnership agreement and two sale agreements, which he claims were made between 1991 and 2016. The second group comprises four leases, which he claims were all made in July 2016.

9. [9]

   The three agreements in the first group, are the following: a document entitled “Ownership Group Contract Agreement”, which Mr McGettigan says was made on 1 October 1991 (“the 1991 ownership agreement”), a document entitled “Sale and Purchase Agreement”, which he says was made on 27 December 1997 (“the 1997 sale agreement”) and a “Debt and Sale Settlement Agreement”, which he says was made on 24 July 2016 (“the 2016 sale agreement”). In addition to these documents, late in the proceedings Mr McGettigan produced a deed of trust, which he says was made on 17 July 2016 (“the 2016 deed of trust”), the validity and effect of which it is not necessary for the Court to consider in these proceedings.

10. [10]

    As to the four July 2016 leases, Mr McGettigan claims that Brian and Beverley leased the Tennyson property to him in instruments respectively dated 16 July, 17 July, 24 July, and 26 July 2016.

11. [11]

    In the equity proceedings, the Court concludes in these reasons that:

    1. (1)

       the three partnership/sale agreements are false documents created by Mr McGettigan;

    2. (2)

       the four leases are false documents created by Mr McGettigan; and

    3. (3)

       the equity proceedings are dismissed with costs.

12. [12]

    In both proceedings, as a result of the Court’s findings and conclusions the defendants are given the opportunity to make a claim for indemnity costs. The Court’s findings in relation to Mr McGettigan’s conduct are referred to the New South Wales Attorney-General to consider whether a criminal prosecution against him for propounding false documents may be warranted. And the Court’s findings are also referred to the Prothonotary to consider whether the same conduct may constitute a contempt of court.

13. [13]

    At the time of the hearing Mr McGettigan was 85. Despite his age he conducted his own case with resourceful self-confidence and energy. He professes to have worked as a successful accountant for many years. He currently resides in Clifton Hill, Victoria and flew up to Sydney to conduct the hearing in person.

14. [14]

    Brian and Beverley McGettigan had no children. Brian McGettigan was survived by six siblings, Mr McGettigan, Margaret Hargreaves, Angela Main, Maria Oldfield, Pauline Dickson, and Barbara Godfrey. Both Margaret Hargreaves and Pauline Dickson gave evidence in support of Mr McGettigan’s case.

15. [15]

    Brian’s and Beverley’s combined estates are worth over $2.15 million. Their principal asset was the Tennyson property, which they held in equal shares as tenants in common before Brian’s death. On 20 August 2020, Parker J ordered the Coulters to sell the Tennyson property. The property was sold on 17 October 2020 for approximately $2.15 million. Net proceeds of sale of $2,050,000 were paid into Court by Field Lawyers on behalf of the Coulters. An additional $50,000 in proceeds was later paid into Court by the conveyancers. The balance of Brian’s estate comprised a bank account with a balance of $1,500 and personal chattels worth approximately $30,000.

16. [16]

    Six proceedings between the interests of Mr McGettigan and the Coulters are presently active in this Court (including one in the Court of Appeal). But the present hearing concerns only two of the six, the probate proceedings (2018/00174649), and the equity proceedings (2020/00104101), which were heard together. Also listed at the same time were proceedings in the Estate of Beverley Teresa McGettigan (2018/00238970), but after probate of Beverley’s will of 25 May 2018 was granted to the Coulters, the Court was not asked to make orders in those proceedings at the hearing.

17. [17]

    These matters were originally set down for hearing in August 2020. But Mr McGettigan is a resident of Victoria and the COVID-19 lockdown in that State at that time resulted in Lindsay J vacating the hearing. Mr McGettigan sought leave to appeal from Lindsay J’s decision by filing a Summons Seeking Leave to Appeal on 8 February 2021 (2021/00035473). This initiating process in the Court of Appeal filed by Mr McGettigan, and the appearance of what purports to be a Supreme Court seal on the front page of the Summons Seeking Leave to Appeal dated 17 September 2020, became a topic of controversy at the hearing. This issue is considered in these reasons below.

18. [18]

    The probate and equity proceedings were set down before me for a final hearing over 5 days from 1 April 2021 to 8 April 2021. The final day of the hearing was vacated and adjourned to 7 May 2021, as Mr McGettigan suffered a medical episode in Court after giving evidence that day. He returned to Court on 7 May after being cleared by his medical advisers. The hearing concluded on 7 May. COVID-19 restrictions did not prevent the trial being a face-to-face hearing throughout, although one witness gave evidence by AVL.

19. [19]

    On 31 May 2021, Mr McGettigan filed in Court a Notice of Motion to reopen his case seeking to adduce further evidence. That Motion was heard on 16 June 2021 and was dismissed with costs for reasons which the Court indicated would be included with these reasons. On 6 July 2021 Mr McGettigan sought to file another Motion to reopen his case and read additional affidavit evidence. The Court indicated to the parties that it would decide Mr McGettigan’s 6 July Motion at the same time as it decided these proceedings and published its reasons.

20. [20]

    The parties and witnesses in these proceedings often referred to one another by their first names. The Court will occasionally do the same in these reasons without intending any disrespect to them. But otherwise Mr John McGettigan will mostly be referred to as “Mr McGettigan” and the defendants mostly as “the Coulters”. The late Brian McGettigan will be referred to by that name, or by his first name or as “the deceased”. The late Beverley McGettigan will be referred to by that name or as “the deceased’s wife”, or by her first name.

21. [21]

    Mr Justin Brown of counsel leading Mr Nicholas Simone appeared for the Coulters, instructed by Mr Mark James Field of Field Lawyers. As earlier indicated, Mr McGettigan appeared in person throughout the proceedings.

22. [22]

    The Court’s observations as to the credibility of witnesses are generally made where those witnesses appear in the narratives. But observations as to the credibility of the principal actors, being John McGettigan, Rhonda Coulter and Glen Coulter, appear immediately below.

23. [23]

    Mr John McGettigan. The Court reached the view that it could not accept any of Mr McGettigan’s evidence as reliable, except to the extent that it coincided with undisputed facts, incontestable inferences, or the reliable testimony of other witnesses. Mr McGettigan is intelligent and resourceful. But as a witness he could at times suddenly be belligerent, hedging and querulous. He was often focussed on avoiding being trapped in cross-examination. He commonly added “I may have” to many answers, to give himself room to manoeuvre in answering future questions.

24. [24]

    Mr McGettigan was deeply suspicious of Mr Brown and the other lawyers acting for the Coulters. By the time of the proceedings he had formed a strong dislike for Messrs Field, the father and son solicitors who acted in their local practice for the Coulters. His dislike for Messrs Field was so strong that he was prepared to make entirely unfounded allegations against their professionalism as lawyers. He harboured an irrational (in the sense of not being based on any reasonable grounds) bias against them, largely because by efficiently representing the Coulters they were thwarting his financial ambitions in these proceedings.

25. [25]

    His manner of giving evidence diminished the Court’s trust in him as a witness. At times under cross-examination he interrogated his questioner asking, “are you reading from a document” to try and flush out whether documents might be used to contradict his testimony, so he could better plan his answers. His evidence was replete with internal inconsistencies, improbabilities, studied vagueness, and uncertainties. And his evidence was often incompatible with that of other reliable and truthful witnesses, who the Court accepts. Without any sense of shame or hesitation or even any apparent insight as to the inherent improbability of his testimony, Mr McGettigan was prepared to adhere to grossly improbable versions of the facts in order to avoid departing from the central elements of his case.

26. [26]

    The Court has concluded in these reasons that Mr McGettigan forged the central documents upon which that case relies and has given extensively fabricated evidence to invent a wholly fictitious provenance for those fabricated documents. These forgeries and false documents alone are enough to substantially undermine Mr McGettigan’s credibility and the reliability of the rest of his evidence. Although many other features of the balance of his testimony allow the Court to draw the same conclusion, Mr McGettigan’s false testimony was central to his case.

27. [27]

    How deliberately false Mr McGettigan’s evidence was, is an intriguing puzzle at the centre of this case. Mr McGettigan is an unusual witness in this. He does not appear to notice the boundary that most people recognise as dividing truth and falsehood. His speech appears to glide seamlessly from reality into fantasy. The Court’s working hypothesis in assessing him as a witness, is that he does not understand the difference between truth and falsehood. What he says, when he says it, is true for him at that time and that may differ at another time.

28. [28]

    Mr McGettigan has admitted in cross-examination that he has convictions for offences of dishonesty. But the Court has not weighed them in the balance against him, principally because they are either too old or too little is known about them for reliable inferences to be drawn against him based upon them. Mr McGettigan’s own testimony in these proceedings is quite enough for the Court to infer that he has an almost limitless capacity for the invention of false stories. As will be seen, the direct evidence of the contested events in these proceedings well founds inferences of forgery and dishonesty against Mr McGettigan.

29. [29]

    Material was obtained under subpoena from Victoria Police. Mr McGettigan was cross-examined about and ultimately admitted this criminal history. The Coulters argued that the material could be admitted under Evidence Act 1995, s 97(1)(b), as evidence that Mr McGettigan has a tendency to act dishonestly to secure his own financial advantage. The Court is satisfied that the defendants had put Mr McGettigan on notice that the Coulters would rely on his criminal history as tendency evidence. For convenience the material was admitted into evidence. But for the reasons which follow the material either “by itself” or “having regard to other evidence” does not have “significant probative value” within s 97(1)(b).

30. [30]

    Documents subpoenaed from the Victoria Police confirm that shortly after Mr McGettigan became an accountant that he was charged with and convicted of embezzlement (22 counts), fraudulent conversion (9 counts), and false pretences (3 counts) in 1976. For these convictions he received a fine of $1,700. 45 years later it is difficult to tell how relatively severe this fine was in relation to the conduct in question. And a single group of offences 45 years ago is hardly a reliable basis to judge a person’s present character and tendency to act one way or the other.

31. [31]

    But the cross-examination of Mr McGettigan about his criminal history revealed much about his approach to giving accurate factual evidence, quite apart from what might be said to flow from the substance of these old criminal convictions. When Mr McGettigan was first confronted with the embezzlement charges he denied ever having been convicted. Mr Brown for the Coulters then made clear to Mr McGettigan that he had access to his criminal records. The following cross-examination ensued:

32. [32]

    This is a neat example of a constant feature of Mr McGettigan’s evidence: he is prepared to say whatever it takes to advance is his case truthful or not, until he knows his cross-examiner has a document that will contradict it. He will then back off from the position he had taken, often reluctantly.

33. [33]

    Mr McGettigan was also cross-examined about a more recent conviction for dishonesty. In 2010, Mr McGettigan was charged with and convicted of obtaining a financial advantage by deception from a Commonwealth entity. For this offence, he received a three-year good behaviour bond under the Criminal Code Act 1995 (Cth), s 20(1).

34. [34]

    The Coulters advanced evidence about this conviction on the same basis as Mr McGettigan’s 1976 convictions, under Evidence Act, s 97. The material was admitted. But little is known about the circumstances of this 10-year-old conviction. And there is no suggestion that Mr McGettigan was convicted for an offence of dishonesty at any time in the 34 years between 1976 and 2010. The circumstances of this 10-year-old offending are so unclear at this distance, that it is a weak basis to draw tendency inferences against Mr McGettigan. The Court has not relied upon the fact of the conviction itself, to draw any inference about his credibility.

35. [35]

    But once again, leaving aside inferences that might arise from the fact of the conviction, Mr McGettigan was unwilling to concede that he had been convicted until confronted with the fact that the cross-examiner had his criminal record. Mr McGettigan again at first denied being convicted, then he admitted it, then he in substance denied it again:

36. [36]

    Mr McGettigan’s evidence lacked the spontaneous candour of an honest man. The simple truth – in this case that he had been convicted – was not his first choice in answering the questions put to him.

37. [37]

    Mr McGettigan’s sister, Pauline Dickson, testified that she was unaware of her brother’s prior convictions. Margaret Hargreaves also told the Court that she was unfamiliar with Mr McGettigan’s criminal convictions. The Court accepts their evidence on this subject, founding the inference that he had some intra-family shame about these convictions.

38. [38]

    Other admissions Mr McGettigan made when being cross-examined were relevant to assessing his credit. He admitted he was prepared to lie as a strategy, when he judged it would suit his purposes. Mr Brown put to Mr McGettigan that an email that he sent to Mr James Field on 3 August 2018 stating that he did “not know who the beneficiaries of the [2016 will] are”, was false. There was a sound basis for this question, because Mr McGettigan’s case was that the 2016 will was in Mr McGettigan’s possession at the time that he sent this email. The Coulters’ case was that the 2016 will was fabricated at about that time by Mr McGettigan. The full context of the email in question is described later in these reasons.

39. [39]

    Mr McGettigan appeared reluctant to answer Mr Brown’s questions directly about the untruthful assertions in this email. So, the Court asked some direct questions about the subject of Mr Brown’s cross-examination in which he conceded that he knew what he had said was not true, but he claimed that the falsehood “was a strategy”.

40. [40]

    Mr McGettigan was not able to give any satisfactory answer as to what his “strategy” was that caused him to make an untruthful assertion in this email. But more fundamentally Mr McGettigan was here admitting that he was prepared to lie as a part of a “strategy” when it suited him. Mr McGettigan’s strategy in this case is to secure Brian McGettigan’s assets for the McGettigan family, rather than to allow them to devolve to the Coulters. There are many examples in this case of Mr McGettigan, being prepared to give untruthful evidence to advance that strategy where he deems it necessary.

41. [41]

    The Coulters. Both Rhonda and Glen Coulter were excellent witnesses. They were both measured, thoughtful, direct, truthful and reliable. They appeared variously disconcerted, distressed or annoyed about Mr McGettigan’s pursuit of these at times fanciful proceedings against them. But their annoyance did not distort their evidence. None of the account of the facts that they gave in their evidence was seriously challenged in cross-examination. The Court accepts all their evidence.

42. [42]

    The probate proceedings and the equity proceedings commence with a narrative of findings of the history relevant to each proceeding. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.

The Probate Proceedings

1. [43]

   By their Statement of Claim the Coulters seek a grant of letters of administration annexing the 2000 will in solemn form. Mr McGettigan’s Amended Statement of Cross-Claim seeks a grant of probate of the 2016 will to him in solemn form. The Coulters deny Mr McGettigan’s standing to challenge the 2000 will. The circumstances of its execution having been put in issue; they are fully considered here. But the origins of the present dispute lie in the McGettigan family history, which is considered first in this narrative.

2. [44]

   Mr McGettigan’s account of much of his early family history can be accepted. Mr McGettigan is the third of nine children born to John and Margaret McGettigan between 1933 in 1954. Three of the nine children have died and six survive. Mr McGettigan was born in 1935 and was aged 85 at the time of the hearing. The McGettigan family have a background in farming. Mr McGettigan grew up on a farm owned by his grandparents in Byron Bay before moving in the 1950s to a dairy farm owned by his parents in Myocum in the Northern Rivers region of this State.

3. [45]

   Brian McGettigan, the deceased, was the next younger sibling to Mr McGettigan, being born in 1936. He left school in 1953 and lived and worked on the family farm until 1963, when he moved to Sydney. Mr McGettigan also worked on the family farm with his brother Brian before he left the farm to pursue other employment. In 1963 Brian accepted a job as a product representative with Castrol Oil Co (“Castrol”), which required him to move around this State in the following years.

4. [46]

   Mr McGettigan says and the Court accepts that once Brian moved away from the family farm at Myocum, that he remained in close contact with Brian “for the whole of his life”. Many factors indicate that this is likely to be correct. Mr McGettigan and Brian were very close in age, Mr McGettigan being the elder by a little over 12 months. These proceedings demonstrate that Mr McGettigan had long taken a close interest in Brian’s family and financial affairs. Whilst the Court does not accept much of what Mr McGettigan says about his financial dealings with the deceased and his wife, Mr McGettigan’s general personal interest in his brother’s welfare and progress in life can be accepted.

5. [47]

   Although they were separated by their work, Mr McGettigan spoke on the telephone every few months to Brian. They discussed Brian’s various business ventures, including the purchase of hotels and farms. By 1972 Mr McGettigan had become an accountant, so he gave informal financial advice to his brother.

6. [48]

   About the time Brian commenced his new job in 1963, he met his future wife Beverley. Brian and Beverley were married in 1965. Mr McGettigan attended the wedding.

7. [49]

   Not long after Brian and Beverley were married Mr McGettigan began to form an adverse view of Beverley. Whether she deserved Mr McGettigan’s negative opinion was much debated in the proceedings. But it is beyond doubt that Mr McGettigan had a poor relationship with Beverley from an early time, even to the point of holding her in contempt.

8. [50]

   Mr McGettigan spoke openly of his disdain for Beverley. He says that Brian confided in him that Beverley was conducting adulterous relationships with other men behind Brian’s back.

9. [51]

   About two years after Brian and Beverley were married, Brian was posted to the town of Tumut as part of his work as a sales representative for the oil company that employed him. Beverley did not go to Tumut with him. She remained living in the suburb of Burwood in Sydney, whilst working as an administrative assistant for what was then the Bank of New South Wales. Brian travelled to Sydney and visited Beverley on weekends.

10. [52]

    Mr McGettigan says that in 1969, his brother Brian disclosed to him during one of these weekend visits to Sydney: “I think Beverley is seeing someone else”. Mr McGettigan says that in 1970 his brother Brian returned in conversation to the subject of his and Beverley’s poor marital relationship, telling Mr McGettigan that: “I am considering getting a divorce from Beverley. I am sure she is having an affair with another man”.

11. [53]

    The Court is cautious about accepting evidence of conversations occurring over fifty years ago about the private relationships of a married couple, who are now both deceased. Many factors magnify this ordinary caution in this case. Brian and Beverley remained married between 1965 and 2018, a period of 53 years. Neither of them ever initiated divorce proceedings against the other. They always lived in the same household together. Mr McGettigan has a well-developed capacity to invent false evidence. Moreover, it assists Mr McGettigan’s claims to Brian’s estate to disparage the marital relationship between the deceased and Beverley.

12. [54]

    Brian and Beverley McGettigan’s marriage may have been far from perfect. The Court does not have to decide in 2021 whether allegations of adultery in 1969 were justified. All that is relevant for present purposes is whether there was tension between the couple and the general nature and intensity of that tension. It is also relevant to know whether Mr McGettigan and some other McGettigan family members formed a very hostile relationship towards Beverley. These issues are relevant to the probability, or otherwise, of Brian McGettigan making the 2016 will and entering the inter vivos transactions which Mr McGettigan contends that he did.

13. [55]

    The Court accepts that there were significant tensions within Brian and Beverley’s marriage. The evidence explored these tensions in several directions. Mr McGettigan believed that Beverley had been with other men during her marriage. There was evidence that Brian had taken up with another woman. In the Court’s view it can be concluded that Brian and Beverley McGettigan at times led separate lives during their marriage and that their relationship was stressed by issues of marital fidelity. But beyond that it is difficult to draw any firm conclusions other than that Mr McGettigan and his family members were very hostile towards Beverley.

14. [56]

    Mr McGettigan and other McGettigan family members were also critical of Beverley because of their belief that she drank too much alcohol. Mr McGettigan told the Court that Beverley was a “heavy drinker and smoker” and that Brian was “a non-smoker and social drinker”. In cross-examination, Mr McGettigan reiterated that Beverley “was a drunk and an alcoholic”. The development of a family view that Beverley was too close to alcohol is not entirely surprising. As will be seen below, Brian and Beverley’s entrepreneurial skills led them to acquire and operate hotels over several decades.

15. [57]

    The Coulters did not accept the description of their aunt as an alcoholic. But they accepted that difficulties existed between the couple. Beverley had confided to Glen and Rhonda Coulter more than once that she and Brian did not have a good relationship and there was no trust between them.

16. [58]

    In the Court’s view the probabilities are that once they entered the hotel industry Beverley commenced to drink at levels heavier than what the McGettigan family regarded as socially acceptable. But the Coulters are reliable historians and the Court is not prepared to find that she was an alcoholic, although her alcohol consumption is likely to have contributed to the other marital tensions with Brian.

17. [59]

    Other McGettigan family members expressed aversion to Beverley. For example, Mr McGettigan’s sister Pauline Dickson, testified that Beverley had been a “chronic alcoholic” but the Court does not accept this as an accurate description. It was clear she disliked Beverley intensely. She agreed emphatically that she “[m]ost definitely did not” have a “close relationship” with Beverley. Upon closer questioning Pauline Dickson conceded her knowledge of Beverley’s alcohol consumption was “[n]ot firsthand”. The Court places little weight upon her opinion on this subject in part because of her preconceptions. She had firm convictions about the entitlement of the McGettigan family to an interest in the Tennyson property. But upon analysis her evidence did not touch directly on any main issue.

18. [60]

    Commencing in the 1970s Brian would seek Mr McGettigan’s accounting and financial advice. The Court accepts that Mr McGettigan would often discuss “Brian’s various business ventures, such as the purchase of hotels, and farms” with him.

19. [61]

    In around 1975, Brian left his job as a product representative for Castrol. With the financial assistance from his father, Brian purchased a hotel business in Waterloo, Sydney. Brian and Beverley moved into the hotel to live and work together.

20. [62]

    The couple developed an eye for hotel businesses. For the next decade they successfully bought and sold hotels. Their business model was to buy run down hotels, build up the business operations and sell them for a profit. Mr McGettigan says Brian undertook these purchases and was responsible for running the various businesses. But there is much incidental evidence of Beverley conducting day-to-day operations and banking for these businesses. It is safe to infer that Brian and Beverley were acting as a business partnership in the decision-making for their business model.

21. [63]

    In 1979 Brian and Beverley purchased land in the Northern Sydney suburb of Davidson (“the Davidson property”) as joint tenants on which they constructed a house. They lived together at the Davidson property for many years while they managed their Sydney hotel businesses, although their personal lives were growing more distant. In the years that they were living at the Davidson property the Court accepts Mr McGettigan’s account that Brian told him of his suspicions that Beverley was “having more affairs”. Mr McGettigan says that he “never observed [Brian and Beverley] hold hands, kiss, or show any affection in public”. It can be accepted that they were not a demonstrably affectionate couple, but the Court does not accept Mr McGettigan’s characterisation of their relationship during this period as more of a “business type relationship”.

22. [64]

    But on the other hand, Glen Coulter describing their marriage as “a solid business and family relationship” as he does is presenting something of an oversimplification. The Court accepts that in about 1981, whilst Mr McGettigan was visiting Sydney on business, he met up with Brian at one of his hotels, when Brian confided that he and Beverley “now live our separate lives. She lives her life and I live mine”. The Court also accepts Mr McGettigan’s evidence that for a period in the 1980s Brian formed a relationship with another woman by the name of “Wanda”.

23. [65]

    In March 1984 Brian and Beverley began to try their hands at farming. They purchased a cotton farm at Boggabilla in northern New South Wales (“the Boggabilla property”). They purchased the Boggabilla property as joint tenants, repeating what they had done with the Davidson property, affirming by that structure a long-term view of their relationship. The property was conveniently close to another farm already owned by Pauline Dickson and her husband near Moree, which allowed Brian and Beverley to take advantage of nearby family support with farming equipment and advice. There was no house on the Boggabilla property and Brian stayed there in a caravan, generally without Beverley, when he needed to work there.

24. [66]

    Beverley continued living at the Davidson property. She ran their hotel operations in the Sydney area whilst Brian travelled up and back from Boggabilla and conducted their farming operations there. The couple’s financial management of these two quite different enterprises naturally diverged.

25. [67]

    Eventually the couple sold the Davidson property in 1987. The couple rented accommodation in Sydney until 1991.

26. [68]

    In 1991 Brian and Beverley decided to opt for semi-rural life just outside Sydney, by purchasing the Tennyson property, once again as joint tenants. Thereafter Brian would spend part of the year at the Boggabilla property and the rest of the year at the Tennyson property, until the couple finally sold the Boggabilla property in 1994. Brian then moved back to the Tennyson property with Beverley. At about the time of the sale the Boggabilla property, Brian and Beverley also purchased a duplex in the Sydney suburb of Haberfield, again as joint tenants.

27. [69]

    Some family members suggested that Brian and Beverley’s property acquisitions, including the Tennyson property, had been financed by Brian’s parents. Pauline Dickson said that she had been aware from receipts that she had discovered that Brian and Beverley had been making monthly payments to hers and Brian’s parents. She inferred from this that Brian’s parents had contributed to Brian and Beverley “getting started” and possibly even to the purchase of the Tennyson property. But accepting such payments were being made, the Court does not accept there is any reliable evidence supporting an inference that these were repayments of a loan from Brian’s parents. That such a loan may have been made helps ground a general McGettigan family sense of moral entitlement to Brian’s estate but the existence of such a loan is speculative and its relevance to the issues in the proceedings was not established.

28. [70]

    Soon after the Haberfield property purchase, a watershed was reached in Brian and Beverley’s relationship. At the end of 1994 they decided to sever the joint tenancies in their two major assets, the Tennyson property and the Haberfield property. The reasons for this decision and the explanation for it being made in 1994 are obscure. But it undoubtedly represented change in their outlook on their relationship after almost 30 years of marriage.

29. [71]

    The two Transfers severing these joint tenancies are both dated Boxing Day 1994 and are signed by Beverley and Brian as transferors and transferees. Mr James Field, the solicitor for the estate who gave testimony in the proceedings, witnessed their signatures on both Transfers. It is not difficult to infer from these facts that during the Christmas period at the end of 1994 the couple decided to take some steps to separate their financial affairs.

30. [72]

    But they did not divorce, and they continued to live together, although not happily. It can be accepted that Brian and Beverley were largely living separate lives from one another at this time after many years of marital tension. This transaction supports that inference. The transaction also provides support for Mr McGettigan’s evidence that Brian confided in him about this time that he (Brian) never went through with a divorce because: “It’s pointless splitting up at our age”. Mr McGettigan says, and the Court accepts, that in the early 1990s he did discuss with his brother the possibility of divorce but Brian ultimately abandoned the idea, possibly because of a combination of inertia and fear of coping with a divided asset pool and a hostile Beverley.

31. [73]

    Brian’s resignation to an unhappy marriage is supported by the evidence of Mr McGettigan’s and Brian’s sister, Margaret Hargreaves. She said there had been “so many break-ups in the marriage” between Brian and Beverley over the course of their fifty years together. She confirmed Mr McGettigan’s claims that Brian had seriously contemplated divorce from Beverley three times and had consulted clergy about divorce but did not go through with it. She attributed Brian’s reluctance to go through with the divorce to his fear of Beverley, bolstering that argument with her own account that she did not “dislike” Beverley but rather was “frightened” of her.

32. [74]

    Margaret Hargreaves had a strong antipathy to Beverley. She thought that Beverley had treated Brian badly and that the McGettigan family deserved far more of Brian’s estate. But despite that antipathy, within its limits her evidence was generally reliable. She made appropriate admissions about the limits of her knowledge about Brian and Beverley’s financial affairs and conceded she did not know much about their family finances or about any alleged partnership between Brian and Mr McGettigan.

33. [75]

    Brian and Beverley ultimately sold the Haberfield property in 2007. Thereafter they continued to live at the Tennyson property. They remained tenants-in-common in the Tennyson property until their deaths in 2018.

34. [76]

    Brian and Beverley shared the Tennyson property for 27 years between 1991 and 2018. Brian built up the property to accommodate his activities as a horse breeder, trainer and harness racer and he prepared several champion pacers during his time there.

35. [77]

    The Court accepts Mr McGettigan’s evidence that he visited the Tennyson property every 6 to 9 months and spoke with Brian six-monthly until 2006 in every three or four months after that. The Court accepts Mr McGettigan’s observations that Beverley drank and smoked regularly, and that Brian was not a smoker and only a social drinker. But the Court does not accept that every time Mr McGettigan saw Beverley she was drunk or under the influence of alcohol. That is inconsistent with the Coulters’ evidence, which the Court generally accepts. But Mr McGettigan’s evidence is to be accepted that Brian and Beverley lived separately in the house and that at times he witnessed Beverley making disparaging comments about Brian and that she often drank significant quantities of alcohol. By this time Beverley herself was unwell and was wheelchair-bound with a diminished capacity to care for her husband in any event.

36. [78]

    The Court also accepts Mr McGettigan’s evidence that Beverley did not accompany Brian to McGettigan family functions from the Tennyson property. That is not entirely surprising, as it would not have been difficult for her to discern the strong McGettigan family disapproval directed at her. And in the later years she became wheelchair-bound and less mobile.

37. [79]

    Brian’s health began to decline in mid-2016. His first major admission to Nepean Hospital during this period was from 17 May 2016 through to 22 June 2016. He complained of back pain and malaise and was assessed as having a previously untreated multiple myeloma. He had trouble walking at times and needed a walking frame or a walking stick. He was clearly very feeble and needed assistance at times with feeding and toileting. He was given oxygen from time to time.

38. [80]

    During this first admission social workers made enquiries about how he and Beverley managed at home. The notes record that Brian “acknowledged he would need assistance”. Social workers spoke to Beverley, who is reported as saying, “she was unable to help [patient] as she wheelchair-bound/fractured shoulder”. In-home services were not organised before his discharge. Brian ultimately discharged himself against medical advice on 22 June 2016. The medical judgment in late June was that Brian’s condition was still sufficiently debilitating that he was better off in hospital than with inadequate services at home.

39. [81]

    He was readmitted to Nepean Hospital on 7 July 2016, on referral from the cancer care clinic with acute renal failure on a background of multiple myeloma. He continued to be treated for multiple myeloma until his discharge on 25 July. Midway through this admission period Mr McGettigan alleges, and the Coulters dispute, that Brian left Nepean Hospital and executed the July 2016 will near North Richmond station, some 23 kilometres away and just under 30 minutes by road. The Court concludes this is highly unlikely but the nursing notes relating to this day are discussed later in these reasons.

40. [82]

    In the admission notes on 7 July, Beverley is nominated as Brian’s next of kin to be contacted in case of emergency. The admission notes record under the heading “Social Issues”:

41. [83]

    Neither Beverley nor Brian are likely to have been the source of this opinion about Beverley. A judgment such as this in nursing notes is unlikely to have been a judgment formed by the direct observation of medical professionals on admission. Other McGettigan family members were present and may have been the source of that opinion. A nursing progress note dated 7 July 2016 states that one of Brian’s nephews, “Chris” from “Adelaide”, had reported Beverley was not appropriately caring for Brian. Mr McGettigan relies upon these notes to support his case that Beverley was an alcoholic, who as a result was a very imperfect carer for her husband.

42. [84]

    Similar comments appear elsewhere in the nursing and medical notes and should be treated with caution. Indeed, on 9 July 2016 the nursing notes record that someone who claimed to be the patient’s son told staff that Beverley was telephoning Brian and complaining about things that “were not true”. The notes go on to record:

43. [85]

    Brian and Beverley did not have a son. Whoever was giving information to the hospital was confusing hospital staff and weakening the reliability of notes about Brian’s family. It can be inferred from several notes and from his condition during this admission that Beverley had probably not been looking after him well at home. But he wanted to return home and he ultimately did and lived there until his death in 2018.

44. [86]

    The nursing notes show that Brian progressed early in his admission from being unsettled and incontinent with poor capacity to care for himself to being settled and responding well to regular medication.

45. [87]

    The inferences to be drawn from these notes should be weighed carefully. They also contain references to Beverley regularly attending upon Brian and giving information to the nursing staff about requirements for his care at home. The nursing notes also support the inference that Beverley was present at the hospital from time to time providing the kind of assistance likely to have been offered by a supportive spouse. And Beverley continued to look after Brian at the Tennyson property between 2016 and 2018 when he was not in hospital for treatment.

46. [88]

    Brian had further hospital admissions for chemotherapy and ultimately for palliative care. He died on 15 April 2018. His death certificate records his proximate causes of death as cardiac arrest and coronary thrombosis and his last illnesses as, atherosclerosis, multiple myeloma and hypertension.

47. [89]

    In the days after Brian’s death, Mr McGettigan and his siblings began making inquiries about Brian’s will. The course of events during this period is at odds with Mr McGettigan’s case that he had arranged the execution of Brian’s will on 16 July 2016.

48. [90]

    Neither the Coulters, nor their lawyers, could locate a final will for Brian. Brian had long consulted Field Lawyers in Dural for his legal affairs. Brian was an old friend of the senior lawyer in the practice, Mr James Field, but by 2018 his son Mr Mark Field was running the practice. Mr Mark Field made several inquiries about Brian’s will after his death. There was no will in the firm’s safe. He made further inquiries of the Supreme Court and local solicitors without result.

49. [91]

    Brian’s funeral service was held on 27 April 2018. At the funeral Mr McGettigan approached Mr James Field and asked him whether Field Lawyers held a will for Brian McGettigan. Mr James Field responded in the negative and Mr McGettigan replied: “I guess that means she [Beverley] gets everything then”.

50. [92]

    No more than a calendar month after Brian’s death Mr McGettigan commenced to correspond with Beverley about aspects of his estate. Showing no sensitivity to Beverley’s feelings, on 15 May, 20 June and 11 July 2018, Mr McGettigan wrote to Beverley requesting that she return a “gold watch and chain” said to have been in Brian’s possession before he died and noting that they belonged to the “McGettigan family”. The last of these letters declared that “no extension of time” would be given to Beverley to produce the watch and chain.

51. [93]

    This correspondence from Mr McGettigan is wholly inconsistent with him participating in the making of Brian’s will. Indeed, his letter of 11 July 2018 is written on a clear assumption of ignorance of that will:

52. [94]

    Had Mr McGettigan been aware of the deceased making a will on 16 July 2016 the fair and open way for him to conduct this correspondence with Beverley was to declare his knowledge of the 2016 will and to ask her whether any will had been made since that date.

53. [95]

    Pauline Dickson pursued similar correspondence with Beverley. On 23 June 2018 she wrote to Beverley declaring that Brian had said to her “Jim Fields, my old schoolmate has my will and Harg and Elizabeth have my power of attorney”. The reference to “Elizabeth” is apparently a reference to Elizabeth Hargreaves, a solicitor who is a niece of the deceased and Mr McGettigan. Pauline Dickson requested a copy of his will in the following terms, referring to her brother, the deceased as “Dig”, an abbreviation of “digger”, a family name for him:

54. [96]

    Beverley did not respond to this correspondence. By then she was ailing and was not far from death herself. None of this correspondence shows any knowledge of Brian having made a will on 16 July 2016.

55. [97]

    Beverley died on 16 July 2018. In the days following her death, Rhonda Coulter, acting in her capacity as co-executor with her brother, arranged Beverley’s funeral. During this time, she began to look through Brian’s and Beverley’s papers at the Tennyson property. The papers were disordered, on the floor, on the desk and in filing cabinets. The Court accepts her evidence that she found the 2000 will among those papers, in a manila folder marked “Will Kit”.

56. [98]

    At the time of Beverley’s death on 16 July 2018, Mr Mark Field received a letter from Beston Macken McManis Lawyers, a Sydney-based law firm (now “BMM Law”), in which Elizabeth Hargreaves worked as a legal practitioner. The letter requested a copy of Brian’s will on behalf of "the McGettigan and Hargreaves families: siblings, relatives, attorneys, appointed and guardians of the late Brian McGettigan”. The letter offered a theory about when Brian’s will was made and contended: that the will was “dated 2013”; that it had been sighted “at the home of the deceased”; and that the deceased had referred to the will as having been prepared by Field Lawyers on instructions from the deceased. It is to be inferred that before this correspondence Beston Macken McManis Lawyers were not instructed about the existence of a will of the deceased in July 2016.

57. [99]

    Margaret Hargreaves followed up these requests by telephoning Mr James Field on 23 July 2018. During this phone call, she asked whether there was a will for Brian McGettigan and if so, who would be entitled to his estate. He replied to her as follows:

58. [100]

    Margaret Hargreaves then informed him in this telephone conversation that no will had been prepared for the deceased, when he had executed an enduring power of attorney and appointment of enduring guardian. That was apparently reference to the deceased’s creation of such instruments in favour of Elizabeth Hargreaves. But Mr James Field had not been involved in this legal work. He simply told Margaret Hargreaves that he thought Brian’s estate would probably pass to Beverley.

59. [101]

    Some members of the McGettigan family were determined to take possession of the Tennyson property, believing they were entitled to it. But they dishonourably exercised their claim whilst the Coulters were honouring Beverley at her funeral.

60. [102]

    The Coulters arranged Beverley’s funeral for Friday, 27 July 2018. Rhonda Coulter says and the Court accepts that during, and then after, the funeral the following conversation took place between Margaret Hargreaves and Rhonda Coulter:

61. [103]

    Margaret Hargreaves’ elusive statement was correct. The letter she then handed Rhonda Coulter read as follows:

62. [104]

    Mr McGettigan had indeed taken possession of the Tennyson property whilst the Coulters were at Beverley’s funeral. This letter and the taking of possession of the Tennyson property reveal much about Mr McGettigan. In giving evidence about this incident, Mr McGettigan exhibited not the slightest shame using Beverley’s funeral to take what he thought was his. No threads of common decency can restrain him from taking what he regards as his.

63. [105]

    But he was also prepared to precipitate action on dubious legal grounds. On the evidence Mr McGettigan had declared he held up to that point his claim to the Tennyson property was baseless. The Tennyson property was held by Brian and Beverley as tenants in common. Beverley’s share had passed under her will to the control of her executors, the Coulters. He had been told by Mr James Field by this time that Brian’s share would probably pass to Beverley and then also to the Coulters. But none of this stopped Mr McGettigan.

64. [106]

    Somewhat in shock, the Coulters took legal advice from Mr Mark Field and waited a few days. In the meantime, the correspondence from the McGettigan family became more demanding and at times threatening in tone. On 28 July 2018, Mr McGettigan sent a text message to Rhonda Coulter, “Hi Rhonda please tell us where the Watch and Chain is, and we will go easy on you”. He was apparently unable to find the watch and chain at the Tennyson property.

65. [107]

    This is an example of a disturbing feature of Mr McGettigan’s character: when he does not get his way, he is prepared to inject an element of menace into his communications. But ignoring the menace, Rhonda Coulter remained cooperative, declaring in reply that she knew “my aunt wanted the watch and chain to go back to your family”. The Court accepts Rhonda Coulter’s evidence that the watch and chain were never found.

66. [108]

    Also, on 28 July 2018, Margaret Hargreaves sent a text message to Rhonda Coulter staking out the McGettigan family’s claim in unmistakably firm language, calculated to deter dissent from Rhonda Coulter:

67. [109]

    About 29 July 2018, Rhonda Coulter gave a copy of the 2000 will that she had found, to Mr Mark Field. His earlier inquiries about whether Brian McGettigan had made a will had been fruitless. Upon receiving the 2000 will from Rhonda Coulter he decided to make no further inquiries. Once the 2000 will was discovered, the Coulters and Mr Mark Field continued to receive letters, emails and other correspondence from Mr McGettigan and his legal representatives in relation to Brian’s estate.

68. [110]

    On 3 August 2018, Rhonda Coulter attended the Tennyson property with Mr Mark Field and three police officers from Windsor police station. Mr McGettigan was not present at the Tennyson property at the time. Under the supervision of the police Rhonda Coulter arranged for the locks to be changed and she and her brother took possession of the Tennyson property as executors of Beverley’s estate.

69. [111]

    To support their claim to possession of the Tennyson property on 3 August 2018, the Coulters applied in this Court in the Succession List for a limited grant of administration ad colligenda bonis, which Parker J granted in Brian’s estate to allow them to take possession of the Tennyson property.

70. [112]

    The same day, 3 August, Mr McGettigan began to invent and communicate by email to Mr Mark Field, a counter strategy to bolster a claim to possession of the Tennyson property. The counter strategy involved the invention of the 2016 will and leases of the Tennyson property to Mr McGettigan, among other documents. As this judgment explains, there are many reasons to conclude that the documentary elements of this counter strategy were fabricated. But Mr McGettigan’s counter strategy fictions are better understood when it is appreciated there is an immediate temporal relationship between his eviction from the Tennyson property and his initial development of them.

71. [113]

    In the first 3 August email to Mr Field, Mr McGettigan denied that he had engaged Beston, Macken McManus Lawyers. Mr McGettigan had enough insight to realise that the firm’s failure to mention the 2016 will could be embarrassing for him later.

72. [114]

    In his third email to Mr Field, Mr McGettigan for the first time claimed he was a lessee of the Tennyson property, as follows:

73. [115]

    In his second email to Mr Field, Mr McGettigan for the first time raised the possibility of there being a second will for Brian McGettigan. Tracing out a bare outline of what was to become his story of the July 2016 will, the document was apparently witnessed by Mrs Kathleen Sparkes (who once lived in Melbourne and was since deceased) and Ms Zhan Bei Hua an accountant, (who had once practised in Melbourne but now lived overseas – and was called “Cecilia” by Mr McGettigan). Neither witness had any apparent connection to Brian. Mr McGettigan wrote in his second email:

74. [116]

    Mr McGettigan first propounded the 2016 will as an instrument of which he was generally aware but which he had not seen and which he was yet to obtain from the accountant who had witnessed it. This went a little way towards explaining how Mr McGettigan had not previously mentioned this instrument. But Mr McGettigan’s account of only receiving the document in August 2018, given in order to distance himself from earlier knowledge of the document, raises more questions than it answers. Just why it was that Brian would make a will in July 2016 and then entrust it to an accountant that he did not know and who practised in another city, when his brother John who benefitted under the will was at hand to keep it, has never been satisfactorily explained.

75. [117]

    And if Mr McGettigan’s version is to be accepted and he was present at the execution of the 2016 will, he must have appreciated that he was the sole beneficiary of that will and he would also therefore have known that the statement in his second email, “I do not know who the beneficiaries of the Will are”, was false.

76. [118]

    On 7 August 2018, Elizabeth Hargreaves, who is named as the executor in the 2000 will, emailed Mr Mark Field, indicating that she did not intend to apply for probate of the will. Around mid to late August 2018, Mr McGettigan engaged Turner Freeman Lawyers in relation to Brian’s estate.

77. [119]

    On 20 August 2018, Turner Freeman Lawyers sent a letter to Mr Mark Field, advising: that the 2016 will and another document “were held in safe custody by an accountancy firm in Melbourne”; that the 2016 will had come into Mr McGettigan’s possession on 11 August 2018; and that “our client knew of the documents from the time they were made. It was the deceased’s wish that the existence of these was not made known to Beverley”.

78. [120]

    On 23 August 2018, Turner Freeman Lawyers forwarded Mr Mark Field what was claimed to be a copy of the 2016 will, which appointed Mr McGettigan as his executor and gave him the whole of Brian’s estate. This is the first time a copy of the alleged 2016 will was seen by Mr Mark Field, or the Coulters. Multiple versions of the 2016 will which Mr McGettigan claimed were “originals” later emerged in the proceedings. All these documents were photocopies. None of them was an “original” in the sense of containing the original signature of any person. And each differed in ways from the others. One of these was received from Turner Freeman Lawyers on 23 August 2018. Another was received from John Hall Lawyers on 17 October 2018. And yet a third “certified” version of the 2016 will was annexed to Mr McGettigan’s Defence filed on 9 November 2018 in the probate proceedings. And a fourth version of the 2016 will was annexure A to Mr McGettigan’s affidavit sworn in these proceedings on 9 May 2019. The existence of these multiple “original” but different versions of the 2016 will support the Coulters’ claims of fraud. The various versions are considered in greater detail later in these reasons.

79. [121]

    By October 2018 Mr McGettigan had changed solicitors. On 17 October 2018, Mr Mark Field received a letter written by John Hall Lawyers on instructions from Mr McGettigan. The letter advised that Turner Freeman Lawyers had ceased acting for Mr McGettigan. It enclosed the second version of the 2016 will in respect of which it foreshadowed Mr McGettigan would make an application for probate. The letter continued:

80. [122]

    The John Hall Lawyers letter also enclosed an email said to be from Ms Cecilia Zhan addressed to a Michelle Allen as follows:

81. [123]

    This combination of documents appeared to represent that there were several persons resident in Melbourne who could testify to the execution of the 2016 will. For various reasons none of them are available to give evidence in these proceedings. Mrs Kathleen Sparkes is deceased. The Court doubts that Ms Cecilia Zhan exists. And Ms Mei Yuan/Lilly was barely mentioned again. But at the time these documents were first propounded, Mr McGettigan did not appear to appreciate that although 16 July 2016 was two years before his death, Brian was on that day an inpatient in the Nepean Hospital in Sydney.

82. [124]

    With this general background these reasons now examine Mr McGettigan’s claim that the 2016 will was a valid will of the deceased.

83. [125]

    Summary of Issues. The Coulters’ case theory was that the 2016 will was not only not Brian’s last will but that Mr McGettigan had fabricated it. The answers to the many questions raised by the Coulters about the 2016 will strongly support that case theory.

84. [126]

    The Coulters’ first contention was that the two purported witnesses, Kathleen Sparkes and Cecilia Zhan, could not have witnessed the 2016 will. Their second contention was that the deceased could not have executed the 2016 will by any of the means that Mr McGettigan describes. And their third contention was there are so many versions of 2016 will that none of them can be accepted as an original document executed by the deceased. All of these contentions are persuasive.

85. [127]

    Mr McGettigan advanced at least three competing versions of when and how Kathleen Sparkes, Cecilia Zhan and Brian McGettigan all came together to execute and witness the 2016 will. First, in August 2018, when the 2016 will was first advanced, Mr McGettigan claimed that it had been executed in Melbourne, Victoria at the office of an accountant, Cecilia Zhan. The Coulters contend the 2016 will is a forgery, and that, when creating this document, Mr McGettigan wrongly assumed that Brian was able to travel to Victoria on 16 July 2016.

86. [128]

    When it later emerged that Brian had been in New South Wales undergoing cancer treatment at Nepean Hospital on this date, Mr McGettigan changed his version and contended that Brian left the Nepean Hospital to execute the will and the two Melbourne-based witnesses had flown up to Sydney to witness the will at a cafe in North Richmond. This version would later vary further in Court during cross-examination.

87. [129]

    Finally, there are multiple “original” versions of the 2016 will; their very number undermining any claim to authenticity by any one of them.

88. [130]

    The text of the main dispositive provisions in all the versions of the 2016 will is the same, although the formatting of some versions is different. After revoking former wills, it appoints Mr McGettigan as the testator’s “sole Executrix [sic] of this my Will”. Then, in clause 3 it provides:

89. [131]

    The 2016 will then provides (clause 4), that in the event of Mr McGettigan predeceasing the testator, the testator appoints the Perpetual Trustee Co Limited of Hunter Street Sydney as sole executor and trustee and bequeaths the whole of his estate “unto my niece Tracy McGettigan.” The balance of the will gives powers to the testator’s trustee.

90. [132]

    The content of the 2016 will is inherently odd. Nothing is left to Beverley at all. Even if one accepts Mr McGettigan’s case that Brian did not want his share of the Tennyson property to go to Beverley or her relatives, just why Tracy McGettigan, rather than one of the deceased’s sisters, or his attorney, Elizabeth Hargreaves, were not mentioned in the will is puzzling.

91. [133]

    The analysis below is based upon common textual features of all the versions of the 2016 will and does not seek to distinguish between them. The differences between the various versions of the 2016 will are examined later.

92. [134]

    (1) Witnesses to the 2016 Will – Cecilia Zhan. At the bottom of the 2016 will is a signature and a stamp bearing the following details: “Cecelia B. Zhan, Public Accountant, 120 Collins St Melbourne 3000, cecelia2zx@hotmail.com”. As previously stated, the Court did not hear from anyone by the name of Cecilia Zhan at trial. Mr McGettigan told the Court that Cecilia was an old friend of his, an accountant whose work address was located at 120 Collins Street, Melbourne.

93. [135]

    Mr McGettigan’s case did not reveal any objectively verifiable evidence that Cecilia Zhan exists. One might have expected if she were a practising accountant that she would be registered with some professional accounting body and that proof of her registration could easily be obtained. Nothing like that was tendered.

94. [136]

    On the contrary, objective facts which might confirm Cecilia Zhan’s existence have been removed from the evidence. For example, an early affidavit of Mr McGettigan annexed an image of an expired passport that purported to be that of Cecilia Zhan. But her supposed date of birth was redacted from this document. When asked about this at trial, Mr McGettigan stated that he had redacted her date of birth to protect her privacy. But Mr McGettigan is self-possessed enough to know that there were means by which Ms Zhan’s date of birth could be kept confidential and still be used in Court.

95. [137]

    Mr McGettigan told the Court that Cecilia Zhan was in New York and unable to give evidence in Australia. On the first day of the hearing, the Court requested that Mr McGettigan contact her so that she could give evidence at trial, possibly by AVL. Mr McGettigan told the Court that because she was residing in New York, difficulties might arise both in contacting her and in arranging for her to give evidence. He told the Court that she “refused to come to Australia or take part in the AVL”.

96. [138]

    But the Court confirmed that it could arrange for Cecilia to give evidence via video-link in the Supreme Court’s Virtual Courtroom. The Court stressed that this has routinely been done with witnesses both overseas and in Australia especially since the onset of the COVID-19 pandemic. Mr McGettigan did not advance any objectively verifiable evidence that he had tried to contact Cecilia Zhan to give evidence this way.

97. [139]

    On the fourth day of the trial, Mr Brown made a call from Mr McGettigan for all emails sent to and received from Cecilia Zhan, at least in relation to recent arrangements for her to give evidence. Mr McGettigan gave evidence that Cecilia Zhan had had the same email address for the 20 years that he had known her. Yet when called upon, Mr McGettigan provided several different excuses for why he could not produce any emails in response to Mr Brown’s call. He said that he could not connect to the internet whilst in Court; that he had two or three computers; that some of his computers were back in Victoria; and that, specifically in relation to recent email correspondence with Cecilia Zhan, he had received a “bounce back email” showing his emails had not been received and that his usual practice was to delete such emails.

98. [140]

    Mr McGettigan was then provided with the opportunity over the luncheon adjournment to meet the call. But he left his laptop in the Courtroom during the adjournment. Upon resuming the hearing, Mr McGettigan agreed he could not locate any emails in his inbox or sent box to or from Cecilia Zhan’s purported email address.

99. [141]

    As a result of this course of events the Court reached the view that Mr McGettigan was not making any genuine attempt to contact a real person by the name of Cecilia Zhan. The Court does not accept any of Mr McGettigan’s evidence of his dealings with a person he called Cecilia Zhan. The Court is not prepared to infer on the basis of this evidence that the person he describes as Cecilia Zhan even exists.

100. [142]

     Witnesses to the 2016 Will – Kathleen Sparkes. The 2016 will also bears a signature “K Sparkes” of Northcote, Victoria. A person by the name of Kathleen Sparkes who lived in Northcote, in the state of Victoria died on 6 August 2018, aged 90 years. When the 2016 will was apparently witnessed, Kathleen Sparkes would have been 88 years old. Mr McGettigan’s evidence was that he had never met Kathleen Sparkes prior to her arriving in Sydney on 16 July 2016 to witness the 2016 will. Mr McGettigan told the Court that Cecilia Zhan had arranged for Kathleen Sparkes to travel to Sydney with her.

101. [143]

     To state this version is to appreciate that it is nonsensical. Why would Cecilia Zhan organise an 88-year-old woman who had no connection with the deceased to accompany her to Sydney to witness a will? Assuming Ms Zhan was a competent professional accountant, why would she, or indeed Mr McGettigan, not organise a local witness to be present at the expected place of execution in Sydney? Indeed, why would Ms Zhan become involved at all and why would she come to Sydney herself when no qualification is required to witness a will? Mr McGettigan’s case could not give satisfactory explanations to these obvious questions.

102. [144]

     When pressed as to why he did not get someone in the cafe at North Richmond where he claimed the will was executed, to witness the 2016 will Mr McGettigan said “I assume that I could not go and walk into a cafe and ask someone to witness a document”. This in turn raises the deeper question of why the will was being executed at a cafe in North Richmond at all; but still did not explain why local witnesses could not be organised.

103. [145]

     The Coulters put to Mr McGettigan a more compelling explanation for Mrs Kathleen Sparkes’ involvement: he had discovered that Kathleen Sparkes died on 6 August 2018 and it was convenient to his fabrication to have a witness to the 2016 will who was herself deceased.

104. [146]

     But Kathleen Sparkes could not have witnessed the 2016 will. Kathleen Sparkes’ daughter, Karryn Sparkes, an entirely credible witness, gave a compelling account of living with her mother in July 2016. She told the Court that it was impossible for her mother to leave the house without her knowledge and her travelling by plane to and from Sydney for the day is unrealistic. Karryn Sparkes was very annoyed at how Mr McGettigan had used her mother’s name in these proceedings but that did not affect the integrity of her evidence. All Karryn Sparkes’ evidence is accepted.

105. [147]

     Karryn Sparkes says that in 2011 she moved into her elderly mother’s home in Northcote to take on a full-time caregiver role. Her care included dispensing her mother’s daily medication and accompanying her mother whenever she left the home. Karryn Sparkes explained that in 2016, her mother required the highest level of aged care as she suffered from dementia, fragility, and a condition which meant she had to use a walking frame. This immobility meant that Kathleen Sparkes needed assistance with getting in and out of cars. Karryn Sparkes said that her mother had been generally nervous about leaving her home and “really didn’t want to leave…” at any time and that she accompanied her mother whenever she left home. It would have been vastly difficult for a stranger such as Cecilia Zhan to get Kathleen Sparkes out of her home and away for the day without her daughter, who lived in the house, appreciating that she was gone. This part of Mr McGettigan’s case is absurd.

106. [148]

     Karryn Sparkes does not remember her mother leaving the house for a day in mid-July 2016 to go to Sydney to witness a will. The Court accepts her firm denial that she allowed her mother to spend “quite a lot of time by herself”.

107. [149]

     And why Kathleen Sparkes? Karryn Sparkes explained that living with her mother she was well-acquainted with her mother’s friends. But she did not know anyone by the name of Cecilia Zhan. And for Mr McGettigan’s case theory to work Cecilia Zhan would have had to arrange directly with Kathleen Sparkes, who in mid-2016 had advancing dementia, to commit to an appointment involving an intra-day return flight to Sydney. It was quite clear from Karryn Sparkes’ evidence that had Cecilia Zhan tried to arrange for her mother to do such a thing that Karryn Sparkes’ would strongly have opposed the idea.

108. [150]

     Mr McGettigan conceded that he could have had someone in Sydney witness the 2016 will, which would have been far more cost-effective than arranging for witnesses to travel to Sydney. The Coulters' case was that Mr McGettigan engineered to introduce a deceased person to be a witness to Brian’s will, so the witness would be unavailable for questioning. Mr Brown put to Mr McGettigan that he had seen Kathleen Sparke’s death notice in a Victorian newspaper in early August 2018, just before Mr McGettigan first advanced the 2016 will:

109. [151]

     Of course, if Mr McGettigan had been introduced to Kathleen Sparkes through Cecilia Zhan, as was his case, it might be expected that he would have learned of her death through Ms Zhan. His inability to give an account of finding out about her death through Ms Zhan is a telling sign that his account of his contact with Kathleen Sparkes is unreliable.

110. [152]

     The Coulters’ is the most plausible explanation as to how Kathleen Sparkes’ existence came to Mr McGettigan’s attention. Kathleen Sparkes was not known to Mr McGettigan, nor to Brian McGettigan, nor did she have any demonstrable connection with Cecilia Zhan, except through Mr McGettigan’s evidence, which the Court disbelieves. Absent any other credible evidence of Mr McGettigan having a connection to Kathleen Sparkes, the Court infers that he must have become aware of her through the public notice of her death in 2018.

111. [153]

     Mr McGettigan’s case that Kathleen Sparkes was a witness to the 2016 will never overcame the problem presented by this evidence. On its own, this evidence is enough to show that the 2016 will could not have been executed the way that the plaintiff claims that it was.

112. [154]

     (2) The Execution and Attestation of the 2016 Will. The Coulters’ second contention was that the deceased could not have executed the 2016 will by any of the means that Mr McGettigan describes. Mr McGettigan gave at least three inconsistent versions of where and how the 2016 will came to be executed and witnessed by Cecilia Zhan and Kathleen Sparkes. In the Court’s view none of these versions is reliable or capable of acceptance.

113. [155]

     Mr McGettigan’s first version is that the 2016 will was executed and attested in an accountant’s office in Melbourne. Mr McGettigan quickly realised the impossibility of this version and abandoned it. Mr McGettigan committed to this first version in an early exchange of correspondence between Mr McGettigan’s then lawyers, Turner Freeman Lawyers and Field Lawyers, culminating in a letter of 23 August 2018 from Turner Freeman Lawyers.

114. [156]

     In the first correspondence between these lawyers on 16 and 20 August 2018 Mr McGettigan gave instructions to his own lawyers to the following effect: (1) that immediately prior to it coming into his possession, the 2016 will had been “held in safe custody by an accountancy firm in Melbourne”; (2) that the will had come into Mr McGettigan’s possession on 11 August 2018; and (3) that Mr McGettigan was aware of the existence of the 2016 will from the time it was allegedly created on 16 July 2016.

115. [157]

     On 21 August 2018 Field Lawyers probed further and asked with what accountancy firm in Melbourne the 2016 will had been held in safe custody and whether Mr McGettigan was present at the execution of the 2016 will. In answer to these questions on 23 August 2018 Turner Freeman Lawyers, on behalf of Mr McGettigan, said that they were “unsure of the name of the particular accountancy firm” but that its office was located at “120 Collins Street Melbourne” and that the 2016 will was “executed at that office on 16 July 2016” and Mr McGettigan “was present at the time of execution”.

116. [158]

     In his cross-examination upon the details relating to the execution of the 2016 will at this accountant’s office Mr McGettigan presented a masterclass in witness obfuscation. Despite the superficial certainty of the facts stated in the 23 August 2018 letter, Mr McGettigan could not identify the name of the firm of accountants that held the 2016 will, could not identify at what level in 120 Collins Street the firm was located, or where he went to find Cecilia Zhan at work when he needed to get in touch with her, and could not identify the period when she worked at that address. Probably to save face, he ultimately denied that he had instructed Mr John Mann at Turner Freeman Lawyers to write this letter.

117. [159]

     Mr McGettigan’s credibility was badly damaged by his advancing this first version, which rapidly dissolved under mildly probing cross-examination. And it was further damaged by his advancing other different versions, without any adequate explanation as to how we could advance and adhere to subsequent versions which were so different from the first version.

118. [160]

     Mr McGettigan’s second version shifted the execution and witnessing of the 2016 will to the Sydney suburb of North Richmond, which was close to the Tennyson property. This rather odd location brought the execution of the 2016 will closer to Brian’s place of residence but was yet to accommodate Brian’s situation as an inpatient in Nepean Hospital on 16 July. This second version first appeared in Mr McGettigan’s affidavit of 9 May 2019 filed in these proceedings.

119. [161]

     In this affidavit, Mr McGettigan deposed as follows. He met with Ms Cecilia Zhan, along with her friend and travelling companion from overseas, Mei Yuan (also known as “Lilly”) on or around 10 July 2016. They were apparently both visiting Melbourne at the time. Between 10 July 2016 and 15 July 2016 Ms Zhan and Ms Mei Yuan/Lilly agreed with his proposal to travel to Sydney to witness the execution of the 2016 will with Ms Zhan allegedly saying, “if you want us to go up and be a witness that is no problem”. He explained to Ms Zhan and Ms Mei Yuan/Lilly that he would pay the airfare for them and they would then catch the train out to North Richmond, or he would pick them up. But he thought it would probably be better “if we could also get an Australian witness as well” in case the witness was needed later. Ms Zhan said “I think I know someone”.

120. [162]

     Mr McGettigan further deposed as follows. He did not enquire who Ms Zhan’s “Australian friend” was, presuming it would be a former work colleague who wanted to have a weekend in Sydney. Shortly before 15 July 2016 he conversed with Brian on the telephone confirming “the will is ready for your review” and requesting that Brian pick him up from Richmond station. Mr McGettigan said his normal practice when visiting Brian in Sydney was to call Brian once he had arrived in Sydney at Central station to notify him that he was on his way to Richmond so that Brian could meet him at Richmond station. This of course is logical if Brian was at the Tennyson property which is only about 10 kilometres from Richmond station. This second version is structured around the assumption that Brian was located at the Tennyson property on 16 July.

121. [163]

     Mr McGettigan’s second version continued. He deposed that he travelled to Sydney on 15 July 2016, the day before he claimed the 2016 will was executed. He had the draft will with him in a plastic sleeve. On 15 July, Brian collected Mr McGettigan from Richmond station, apparently after having driven from the Tennyson property. Mr McGettigan and Brian then lunched together at the Richmond Hotel opposite Richmond station and then went shopping together at the North Richmond shopping village. Whilst having coffee together afterwards and before returning to the Tennyson property Mr McGettigan and Brian went through the unsigned copy of the 2016 will together and Brian expressed the view that the contents of the will as drafted by Mr McGettigan was exactly what he wanted. Mr McGettigan promised his brother Brian that he would distribute Brian’s estate equally among all of Brian’s siblings if he, Mr McGettigan, received it under the will.

122. [164]

     Mr McGettigan’s second version further continued. Brian drove Mr McGettigan back to the Tennyson property. That night, Mr McGettigan stayed at the Tennyson property, concealing the existence of the draft will from Beverley and dissembling to her about the purpose of his visit. Kathleen Sparkes and Cecilia Zhan were due to arrive in Sydney from Melbourne the next day. On 16 July Mr McGettigan borrowed Brian’s car from the Tennyson property and collected Ms Zhan, Ms Mei Yuan/Lilly and Mrs Kathleen Sparkes from Central station in Sydney. Mr McGettigan was surprised that Mrs Kathleen Sparkes was so obviously elderly, and that she had bandaged hands, which Ms Cecilia Zhan explained were a result of a recent fall down some stairs. Mr McGettigan said he expressed concern about Mrs Kathleen Sparkes’ health but she said that she was “quite fit enough to witness a will”. Mr McGettigan then drove all four of them to a cafe in North Richmond to sign the will, the same cafe where Brian and Mr McGettigan had discussed the will the previous day. Brian thanked the three women for their assistance. Mr McGettigan produced the 2016 will and went outside while Brian executed it in front of the witnesses, although he saw the signing of the 2016 will through the cafe window.

123. [165]

     Following the signing Mrs Kathleen Sparkes commented that the signature was not like her normal signature, but Mr McGettigan said that he thought that it “looked okay”. They stayed together exchanging small talk for about 30 minutes. The arrangement was that the three visiting women would visit the Tennyson property the following day. They had arranged to stay in “motel accommodation nearby”. Mr McGettigan left the 2016 will with Ms Cecilia Zhan because he did not want to take an executed will back to the Tennyson property where Beverley might ask about it. The following day, 17 July 2016, Mr McGettigan collected the three women, showed them over the Tennyson property for three or four hours and then dropped them back at Richmond station from where they made their own arrangements to return to Melbourne on 18 July 2016, where Ms Cecilia Zhan’s task was to deposit the 2016 will with “the accountancy firm”.

124. [166]

     This account bristles with improbabilities and inconsistencies with other uncontroversial evidence. Only a few of them need be mentioned. On this version Brian was living at the Tennyson property for three days, over a period that wholly overlaps with the period that Nepean Hospital records clearly show that he was an inpatient. Mr McGettigan could not have stayed at the Tennyson property or borrowed Brian’s car at this time as Brian was in hospital and Beverley was unlikely to welcome him at the Tennyson property. Although he claims to have paid for the airfares, Mr McGettigan did not produce any airline bookings to show that the travel of the three women had taken place at his expense. Nor was it identified what motel the women stayed at for two nights. Although Ms Cecilia Zhan and Ms Mei Yuan/Lilly were from overseas and were keen to come to Sydney, they showed no apparent interest in seeing anything else in Sydney apart from the Tennyson property before returning to Melbourne. On this version Mrs Kathleen Sparkes was in Sydney for three days and two nights, a version wholly inconsistent with her daughter’s account of her presence in Melbourne and her then state of health, an account which the Court has accepted. Why would Mr McGettigan not be able to remember the name of “the accountancy firm”, or to have some record of it, given that the name of the firm was presumably the only way that he would have been able to find the executed 2016 will in August 2018? Why would Mr McGettigan not arrange some local witnesses? But he was caught by the consequences of his first version in which he had committed himself to Melbourne-based witnesses.

125. [167]

     But Mr McGettigan’s second version unravelled under cross-examination and morphed into the third version. Mr McGettigan abandoned his assertion that he had travelled to Sydney on 15 July. He knew that he had to reduce the extent of the inconsistency between his account and the hospital records. So, in the third version he claimed that in fact he had travelled to Sydney on 16 July and had only taken Brian out of the hospital for a few hours and that Ms Cecilia Zhan and the witnesses had all returned to Melbourne within the one day. On this version he did not need to stay at the Tennyson property or drive around with Brian before or after the will signing and the witnesses did not have to come to the Tennyson property the next day.

126. [168]

     After propounding the second version Mr McGettigan changed course and into the third version in the following passage of cross-examination:

127. [169]

     Mr McGettigan was confronted in cross-examination with the direct inconsistencies between the second version and the new third version. But the changes did not trouble him much. Despite deposing in his affidavit of 9 May 2019 that Brian had collected him from Richmond station on 15 July, at trial Mr McGettigan denied this had happened. He testified: he did not have lunch with Brian in Richmond on 15 July; he did not go to the shops with Brian on 15 July; he did not drive with Brian or see him at all on 15 July. Mr McGettigan essentially abandoned large inconvenient parts of his earlier affidavit evidence, claiming that he did not first see Brian until about midday on 16 July at the North Richmond cafe where the 2016 will was signed. Once again, Mr McGettigan’s untroubled transition from the vastly different second and third versions further diminished his credibility.

128. [170]

     But Mr McGettigan’s third version, particularly his evidence about the movements of Ms Cecilia Zhan, also came under further challenge, for its embarrassing inconsistency with other parts of his case. He had already abandoned his earlier affidavit (second version) evidence that Ms Cecilia Zhan returned to Melbourne with Mrs Kathleen Sparkes on 18 July 2016. In the third version the women caught a taxi back to Central Station in Sydney and all returned to Melbourne on the afternoon of 16 July.

129. [171]

     But there was another problem with this third version: Ms Cecilia Zhan’s signature appeared as a witness on a lease agreement, dated 17 July 2016, by which Brian and Beverley leased the Tennyson property to Mr McGettigan. For this to be a genuine document Ms Cecilia Zhan had to still be in Sydney on 17 July to witness the signatures of Brian and Beverley. Upon further questioning, Mr McGettigan began to modify his third version, telling the Court that Ms Zhan had stayed in Sydney a further “day or so”, adding his modified account in the following two passages:

130. [172]

     The other fundamental problem with the third version is its improbable lack of solicitude for Brian’s welfare during his illness. Why would Mr McGettigan require his brother Brian to leave hospital to execute a will, when the witnesses who had travelled from Melbourne could just as readily have gone to Nepean Hospital to witness it? Mr McGettigan could give no persuasive or adequate explanation as to why he would risk his brother’s health and put his brother to the unnecessary inconvenience of obtaining a temporary discharge from Nepean Hospital to execute the 2016 will, when the risk-free alternative came with little cost to Mr McGettigan and the other alleged visitors from Melbourne. At first, he propounded the idea that Brian just had to fit in with the arrangement that had been made:

131. [173]

     He ultimately settled into an impossible position, that leaving hospital was not inconvenient to Brian:

132. [174]

     A witness whose evidence changes as readily as this and who adheres to such impossible versions of the facts, cannot be accepted as a witness of truth. The Court is persuaded of the Coulters’ case that Mr McGettigan’s original story about the 2016 will being witnessed in Victoria in the first version, began to evolve into the third version, when he became aware that Brian had been a hospital inpatient on 16 July 2016. But that evolution also led Mr McGettigan into an increasingly improbable account of events which was incompatible with other incontrovertible facts. One of those incontrovertible facts was the record of Brian’s admission to inpatient treatment in Nepean Hospital, which is now analysed more closely.

133. [175]

     Brian’s Admission to Nepean Hospital – July 2016. The Nepean Blue Mountains Local Health District produced documents in answer to a Freedom of Information request issued by the Coulters under the Health Records Information Privacy Act 2002. This medical documentation confirms that Brian was admitted to Nepean Hospital on 7 July 2016 at 5:50pm and was discharged on 25 July 2016 at 5:20pm. The medical documentation includes Brian’s medical records, clinical notes and progress reports.

134. [176]

     Mr McGettigan’s case that is to be contrasted with these medical records was quite simple. Mr McGettigan told the Court that Brian had discharged himself from Nepean Hospital on 16 July 2016 to sign the 2016 will. He elaborated in cross-examination as follows:

135. [177]

     The lack of any conversation about Brian leaving hospital is improbable enough in itself. But there is no record in the medical documentation of him leaving the hospital on 16 July, in a manner consistent with Mr McGettigan’s third version.

136. [178]

     The entries for 16 July in the “progress/clinical notes”, which give the most detailed account of the patient’s progress, offer no suggestion that he might have left the hospital in order to be at North Richmond by about midday. The entries commence at 4:35am and comment that he was “alert”, “cooperative” and that he had improved on previous observations.

137. [179]

     An entry at 11:25am indicates that he was “resting in bed at time of report, nil concerns voiced”. And the notes then foreshadowed a “planned family conference on Monday”. The nursing notes should be taken as accurate. They indicate the patient was well settled in bed shortly before midday without expressing any concerns about leaving the hospital to meet an appointment to make a will. This entry is inconsistent with him getting out of bed, getting dressed, arranging to leave the hospital and then taking a 30-minute cab ride to North Richmond to be there by about midday. The notes up to this point are a powerful reason to reject Mr McGettigan’s third version, or indeed his earlier versions.

138. [180]

     The next entry before 16 July is at 6:45pm, which indicates that, “Meds given as charted. Vital obs stable, afebrile”. Again, there is no indication in this next entry that he has recently returned from the exertions of an outing to execute a will. Although there is a gap in the medical documentation progress notes of approximately seven hours, which is theoretically enough time for him to leave the hospital to go to North Richmond and return, nothing anywhere in the notes supports the inference that he did leave during this period.

139. [181]

     Indeed, for him to have left the hospital and returned without there being any record of his having done so, would have been contrary to the hospital’s proper practice. Mr Michael Coote, the Release of Information Officer at Nepean Hospital indicated upon his review of the records for Brian’s admission, that he could see no evidence of Brian having been granted leave or having left the hospital during the period of his admission.

140. [182]

     Mr Coote was cross-examined about the Nepean Hospital’s protocols for the discharge of patients. He confirmed that patients would ordinarily require approval to leave the hospital. He also confirmed that, even if a patient left without the hospital knowing or without approval, then the nursing staff with responsibility for the patient’s welfare would be concerned. There would still be some record of the patient’s absence, such as in nursing or medical notes, which would state the significant fact that the patient was not in their bed.

141. [183]

     Mr McGettigan put to Mr Coote there was no evidence of Brian being attended to between 11:25am and 6.45pm on 16 July 2016. He queried whether Brian “Could have left the hospital and returned without the nurse being aware of it?” In reply Mr Coote said, and the Court accepts, that over a period of absence of hours, it was likely that a record of the patient’s absence would have been made by somebody.

142. [184]

     Quite apart from Mr McGettigan’s evidence, the progress notes do not support an inference that he was medically capable of this journey on 16 July. On 17 July during the day the progress notes indicate that the patient was “ambulating independently” but he “wishes to remain in bed this shift” and that he had “visitors in attendance”. Nursing observations that he was able to get to a shower independently does not support an inference that he was able to dress himself and get out of the hospital into a taxi. Moreover, he was still being treated for a diagnosis of multiple myeloma and acute renal failure and had only recently progressed from near complete immobility.

143. [185]

     Finally, the medical notes for the days between 15 and 18 July are inconsistent with all versions of Mr McGettigan’s evidence. They show him in the hospital on all these days without any indication that he temporarily left the hospital or that he sought approval to do so for any purpose.

144. [186]

     (3) Multiple Versions of the 2016 Will. The Coulters’ third contention was there are so many versions of 2016 will that none of them can be accepted as an original document executed by the deceased. Mr McGettigan has adduced evidence of multiple different but allegedly “original” versions of the 2016 will. These competing versions of the 2016 will, which all emerged from Mr McGettigan’s possession, strengthen the inference that Mr McGettigan fabricated the 2016 will. These versions are all dated 16 July 2016. They all benefit him. None of them appears to be an original in the sense that its paper bears the imprint of the signatures of the testator or the witnesses. They are sufficiently different that Mr McGettigan’s account cannot be accepted without him providing a persuasive explanation as to how the different versions all came to be executed on the same day, a day when Mr McGettigan’s primary case is that only one will was executed.

145. [187]

     Before he was confronted with the multiple versions of the July 2016 will, Mr McGettigan’s case was simple. He deposed in his 9 May 2019 affidavit that “[i]n readiness of my visit of 15 July 2016 I printed one copy of the [2016] will and placed it into a plastic sleeve to take with me to Sydney”.

146. [188]

     But during cross-examination he could not remember whether he had the 2016 will with him at the time he originally said he left for Sydney on 15 July, or not. He then lighted upon a version that he had brought the 2016 will to Sydney a fortnight earlier, before ultimately settling on not being sure what had occurred. The following exchange occurred with counsel for the Coulters commencing to ask about when Mr McGettigan’s flight left Melbourne for Sydney on 15 July. Then the Court took up the subject. The evidence shows Mr McGettigan was suspicious of Mr Brown, deliberately stalling for time to think about how to answer the question and deploying studied vagueness to avoid being trapped later:

147. [189]

     At least four different versions of the 2016 will are in evidence. None of them is an “original” showing the indentation of a pen on the paper during signing or witnessing. They are all photocopies. Without the need to resort to expert evidence, some distinguishing features of these different versions can readily be identified and are set out below.

148. [190]

     First Version of the 2016 Will. The first version of the 2016 will was sent to Mr Mark Field of Field Lawyers by Turner Freeman Lawyers on 23 August 2018 with another document. When Rhonda Coulter first inspected the 2016 will from Turner Freeman Lawyers, she considered that what purported to be Brian McGettigan’s signature on it “did not appear [to her] to be” his.

149. [191]

     Second Version of the 2016 Will. The second version of the 2016 will was forwarded to Mr Mark Field by Mr John Hall of John Hall Lawyers on 17 October 2018. The second version also included an email from the username “cecilia zhan”, with the email address “ceciliaZzx@hotmail.com”. Her email read:

150. [192]

     To any observer, the second version differs from the first version in a number of ways. The signatures of both witnesses appear to be different. Handwriting of “16 July” is different. The handwriting spelling out Kathleen Sparkes’ full name is different. Brian’s signature is different. The page break between the two pages of the will occurs at different points in the text: in the first version 3 lines of text (from clause 5 (c)) that appear at the top of the second page, are found at the bottom of the first page in the second version.

151. [193]

     Third Version of the 2016 Will. On 9 November 2018, Mr McGettigan filed a Defence in the probate proceedings annexing what appears to be a certified copy of a third version of the 2016 will. This third version purports to be certified by Ms Cecilia Zhan on 19 August 2018 as a copy of Brian’s will.

152. [194]

     Upon inspection, the document appears to be different from the first and second versions of the 2016 will. The page break in the text is the same as the second version, not the first version. But the execution of the third version is different from the second version in several ways. The third version is initialled on both pages. There is underlining in the signature block of the second version that does not appear on the third version. Brian’s signatures are different. Mrs Kathleen Sparkes’ signature and address are written differently. The words “16 July” are written differently.

153. [195]

     Fourth Version of the 2016 Will. Mr McGettigan’s 9 May 2019 affidavit annexed yet a fourth version of the 2016 will. The page break in the text is the same as the second and third versions, not the first version. But this fourth version differs from those versions in several ways. It contains more initials than the third version and the initials are in different places from the third version. For the first time Ms Mei Yuan’s/Lilly’s signature appears on the fourth version. Next to Ms Mei Yuan’s/Lilly’s signature is the signature of some other unidentified person. Brian’s signature on the fourth version resembles that on the first version and does not resemble his signature on either the second or third versions. The “16” in “16 July” in the fourth version is markedly different from any other version. The underlining in the printed attestation clause in the fourth version resembles that of the second version but not of the attestation clause in the first and third versions.

154. [196]

     In cross-examination Mr McGettigan sought to explain the differences among these various versions of the 2016 will as the result of a computer malfunction. But the immediate difficulty with this explanation was Mr McGettigan’s own affidavit evidence in which he had said, “I printed off one copy of the 2016 will and placed it in a plastic sleeve to take with me to Sydney” (emphasis added). When this inconsistency was put to him, Mr McGettigan rejected the idea that his affidavit evidence meant that he had only printed off a single copy. He said:

155. [197]

     This explanation has other problems. Apart from their different signatures, the documents are different in aspects of their typescript. Just what kind of computer malfunction would produce such differences is unclear. Moreover, why Mr McGettigan would keep and transport multiple copies of the 2016 will, some of which were demonstrably the product of a computer malfunction, and why he would then have them all executed and witnessed makes little sense.

156. [198]

     Moreover, the only way that the different signatures on the four versions could be legitimately accounted for is if they were all separately executed on 16 July 2016. But Mr McGettigan’s affidavit evidence and cross-examination did not give any account of multiple signings of the 2016 will at the cafe in North Richmond. But in reality, no one signed or witnessed any version of the 2016 will at North Richmond on 16 July 2016.

157. [199]

     Ms Melanie Holt, a Forensic Document examiner, was called in the Coulters’ case. Her evidence further discredited the authenticity of the four versions of the 2016 will that Mr McGettigan advanced. Mr McGettigan made a faint but unsuccessful attempt to challenge her qualifications. But no doubt was thrown upon her expert evidence by his cross examination.

158. [200]

     In relation to the 2016 will, Ms Holt had the opportunity to compare the signature of the testator on the various versions of the will (the questioned documents) with certain specimen signatures of Brian’s genuine handwriting (the specimen signatures). She concluded from this comparison that, subject to certain limitations in the information available to her about Brian’s health and the effect it might have had upon his writing ability, upon the materials available to her:

159. [201]

     The Court accepts this conclusion. All available versions of the 2016 will were not signed by the deceased but by somebody else. The fact that all these versions of the 2016 will came from Mr McGettigan’s custody and benefited him strongly indicates he is the likely author.

160. [202]

     But why did Mr McGettigan produce so many different versions of the 2016 will? The best-fit explanation is that which Mr Brown put to Mr McGettigan during cross-examination. From August 2018 and in the early stages of this litigation Mr McGettigan went to several solicitors, from Turner Freeman Lawyers, to John Hall Lawyers and to Grahame W Howe & Co. When instructing a new solicitor, he found that previous solicitors would not return to him the versions that he had given them. So, he filled the gap by creating a new version to give to the new solicitor. He denied this. He said he did not give the solicitors original wills. It is not necessary for the Court to reach a conclusion about this theory, but it well fits the serial production of similar but not identical documents.

161. [203]

     To counter Ms Holt’s evidence, Mr McGettigan sought to adduce expert evidence from a forensic document examiner, a man by the name of “Cai Biad” with extensive qualifications and experience working in Beijing, in the People’s Republic of China. But there is little evidence to support an inference that a forensic document examiner by that name exists. For the reasons which follow, like Mr McGettigan’s reliance upon Mrs Kathleen Sparkes, the Court concludes that Mr McGettigan probably fabricated the evidence of Mr Cai Biad.

162. [204]

     Mr McGettigan filed an affidavit of Cai Biad sworn 16 September 2019 (Exhibit 13) in these proceedings. The affidavit listed Mr Biad’s address as “51 Soi ASDK Sukhumit21 Bangkok Thailand”. His occupation was stated as “Forensic Document Examiner and Scientist”.

163. [205]

     Mr Biad’s curriculum vitae annexed to the affidavit listed his qualifications, including a Bachelor of Science degree from Beijing City University, membership of the Beijing Document and Industrial Analysis Society for over thirty years, a position as “Commander of the Document Examination Section of the Beijing City Police”, an “impressive 25 years of experience with the courts” as a police prosecutor and forensic document examination expert, and a statement that he had provided advice to international companies and police forces worldwide, including the “F.B.I”, “Rolls Royce” and “Agence France-Presse”. But the odd thing about this claim is that Mr Cai Biad’s report is full of misspellings and ungrammatical expressions that are unlikely to have led to him being retained by any discriminating organisation in which English is the primary language spoken. In many annexures the English words “Forensic Analyst” are misspelled as “Forencis Analysist”. The report is poorly constructed, with uncertain definitions of the terms it uses and is generally not written in the language of a competent expert.

164. [206]

     The Cai Biad report purported to conduct the same exercise as Ms Holt’s report: comparing Brian’s genuine specimen signatures with copies of the 2016 will. The Cai Biad report concluded:

165. [207]

     Mr McGettigan did not suggest at any stage that Mr Cai Biad came to Australia to undertake his work. He was unavailable to give evidence to the Court partly because he lived overseas. But the Cai Biad report contains some strange observations, disparaging the quality of the specimen signatures as unrepresentative, with arguments that that are far more likely to have come from someone like Mr McGettigan who had access to documents in the Supreme Court registry. The report says (at [27]):

166. [208]

     Mr McGettigan said that Cai Biad could not come to Australia for the trial or appear by AVL but he nevertheless sought to rely upon his affidavit. To test Mr McGettigan’s declaration of Mr Cai Biad’s unavailability, and a strong suspicion by then that he did not exist, on the fourth day of the hearing, Mr Brown made a call for Mr McGettigan to produce emails between himself and Mr Biad from his email server. Mr McGettigan was evasive when asked to produce these emails, just as he had been when responding to calls for evidence of communications with Ms Cecilia Zhan. And he ultimately produced nothing in answer to Mr Brown’s call.

167. [209]

     Ms Holt made efforts, without success, to contact handwriting experts she knew in China and within the international forensic handwriting examination community to enquire as to whether they had knowledge of Mr Cai Biad.

168. [210]

     Ms Holt also attested to some of the peculiarities in Mr Biad’s affidavit. The affidavit was affirmed in Thailand but witnessed by a person from Beijing, China; the signature of the author and the witness to the affidavit affirmed in Thailand are both in English Roman Script, rather than Thai or Chinese, as one might expect. Ms Holt said she held “serious concerns about whether there is a person called Cai Biad and if so, whether they are a qualified document examiner”. The Court shares her concerns.

169. [211]

     Finally, the Cai Biad affidavit of 12 September, annexing the Cai Biad report shows signs of recent invention after the date that it bears. Mr McGettigan did not list Mr Biad’s affidavit in his list of affidavits relied upon, ordered by Lindsay J on 23 September 2019 to be provided. When asked why he did not include Mr Biad’s affidavit, despite the fact it is said to have been sworn 11 days earlier, on 12 September 2019, Mr McGettigan again obfuscated. He speculated that by then he had not received a reply from the expert and concluding “that is the reason why I think I have not included it, but I am not sure why I have not included it”. This is yet another signpost that Mr McGettigan created the Cai Biad affidavit and report and that Cai Biad does not exist.

170. [212]

     Forgery – the 2021 Stamp. Further evidence emerged pointing to Mr McGettigan’s recent invention of a second Cai Biad report annexed to his affidavit of 16 September 2019. Annexed to that affidavit was a letter said to be dated 18 February 1998 (referred to later in these reasons as the “disappointment letter”), which was said to have been provided to Cai Biad by Mr McGettigan for the purposes of Cai Biad’s 16 September 2019 report. But a certification stamp that “this is a true copy of the original” appears at the bottom of the disappointment letter, purportedly signed by a postal services officer at the Clifton Hill Post Office, in Victoria on 11 February 2021.

171. [213]

     Mr McGettigan could not explain why a stamp with the date 11 February 2021 appeared on an affidavit which was supposedly deposed on 16 September 2019, almost 18 months prior. His answers on the subject were an undignified embarrassment, tending to support the only rational conclusion that Mr McGettigan was the author of this Cai Biad report:

172. [214]

     In the end there is no reliable and objectively verifiable evidence that confirms there is a forensic document analyst by the name of Cai Biad who Mr McGettigan engaged to give evidence in these proceedings. Cai Biad is Mr McGettigan’s fictitious creation.

173. [215]

     Application for a New Handwriting Expert. On the fifth day of the trial, on 7 May 2021, Mr McGettigan applied for the hearing to be adjourned to October 2021 so that he could engage a new handwriting expert. He argued that he “didn’t have time enough to engage another forensic expert” and that he was at a “disadvantage” because of this. The Court declined this application. Why the Court did so requires analysis of the pre-trial procedural history.

174. [216]

     On 28 July 2020, Ward CJ in Eq made orders directing Mr McGettigan to provide the contact details for Mr Cai Biad to Mr Mark Field. Later Mr Mark Field would request Mr Biad’s details from Mr McGettigan on numerous occasions after this direction. But no details were ever provided to him or to the Court.

175. [217]

     In a pre-trial directions hearing on 26 February 2021 the Court directed Mr McGettigan by 1 March 2021 to provide Mr Cai Biad’s telephone number, email address and postal address to Mr Mark Field and the Court. But Mr Field could not contact Mr Biad at the telephone number provided.

176. [218]

     Following these further enquiries into Mr Biad’s contact details, Mr McGettigan sent an email to my Associate advising that Mr Biad could no longer give evidence as he was in Beijing United Family Hospital suffering from dementia. He wrote:

177. [219]

     When Mr Mark Field attempted to contact the Beijing United Family Hospital looking for Mr Biad, the hospital had no record of the admission of a patient of that name. The matter was again listed for directions on 3 March 2021 to consider Mr McGettigan’s request to engage a new forensic handwriting expert.

178. [220]

     During this directions hearing, the Court queried why, if Mr McGettigan had been aware of Mr Biad’s dementia for some 8 months, this was not brought to the attention of the Court at an earlier date. Mr McGettigan responded:

179. [221]

     The Court acceded to Mr McGettigan’s application. Mr McGettigan was granted liberty to serve further expert handwriting evidence from Mr Thomas Cullen of Lyonswood Investigations & Forensic Group, a firm selected by Mr McGettigan, by no later than 17 March 2021. An order was also made allowing Mr Cullen to uplift and inspect the original 2000 will and the original 2016 will from the Court file in the probate proceedings.

180. [222]

     But before the 17 March 2021 deadline, the Court received an email from Mr Mark Field advising that Mr Cullen was not a handwriting expert as specified by the Court’s 3 March 2021 orders and that Mr Cullen would have to contract with a third party to undertake the actual document examination. Mr Mark Field expressed concern that the original 2000 will only be uplifted from the Court and placed in the hands of an appropriately qualified document examiner who could undertake to the Court to keep it safe. The Court was reluctant to allow a contentious original document to be sent to someone whose expert qualifications were uncertain. Another directions hearing was held on 12 March 2021 at which Mr McGettigan was told that he was at liberty to find another recognised handwriting expert who could give an undertaking to the Court but he would have to do that quickly as the trial date was approaching.

181. [223]

     During the directions hearing on 12 March 2021, Mr McGettigan told the Court that he had found a new handwriting expert, Mr John McGinn of Document Examination Solutions Pty Limited. But a problem arose as Mr McGinn was based in Western Australia, and partly because of border restrictions, could not get to Sydney to uplift the original 2000 will or inspect it at the Registry. Helpfully, Mr Mark Field’s document examination expert, Ms Melanie Holt, volunteered to provide high resolution copies of the original 2000 will that she had made in preparation for her report. Mr McGettigan accepted this course, and the Court consequently made orders extending time for Mr McGettigan to serve on the solicitors for the Coulters further expert handwriting evidence from Mr McGinn by 18 March.

182. [224]

     At a further directions hearing on 22 March 2021 Mr McGettigan told the Court that he would not be “proceeding with a new handwriting expert” as Mr McGinn “found that the timeframe for him to do the examination” was too tight. The Court told Mr McGettigan that there could still be a “degree of flexibility” in allowing him to retain a new handwriting expert to inspect the original documents before the trial commenced on 1 April 2021 and that Mr McGettigan could be given “a bit more time”. The Court asked Mr McGettigan how much additional time he thought he might need. Mr McGettigan replied: “another 12 months”. Mr McGettigan also asked: “Is there any reason why I can’t use the evidence provided by my – my expert that I’ve received?” This was a reference to Mr Cai Biad, who was said to be in Thailand. In response the Court pointed out that if Mr McGettigan wished to rely upon Mr Cai Biad, he would need to be available for cross-examination which apparently was not possible. Therefore, his report was likely to be ruled inadmissible. Mr McGettigan then said in response, “Yes. All right. I accept that then, your Honour”.

183. [225]

     Because of this history the Court declined Mr McGettigan’s application on 7 May 2021. Before the trial Mr McGettigan had been given many opportunities to retain a new handwriting expert and he elected not to take them up. His application to adjourn the matter to obtain a new handwriting expert was therefore dismissed.

184. [226]

     The disputed handwritten 2000 will of the deceased came from what appears to be a will kit designed to be used for a married couple without children, which was Brian and Beverley’s situation. Parts of it were a standard printed form and parts of it were in handwriting. It is a one-page, double-sided, standard will form with handwriting in blue ink on both sides.

185. [227]

     In it the testator is described in handwriting by his full name “Brian Bernard McGettigan” and his occupation is listed as a “self-funded retiree (hobby horse trainer and breeder)”. He gives his address as the Tennyson property. The testator appointed Beverley as his executor and gave the whole of his estate to her. If Beverley was unable or unwilling to act as executor the 2000 will appointed his niece Elizabeth Hargreaves, a solicitor, as alternate executor.

186. [228]

     The 2000 will made specific provision in the following text (in capitals being the printed standard form and in italics being the testator’s handwriting):

187. [229]

     Despite the broad nature of the specific gift to Beverley the testator filled out a clause in the standard will disposing of his residuary estate to his sister, Margaret Hargreaves. Finally expressed a wish to be buried by the Bangalow Catholic Church and interred at the Bangalow Cemetery.

188. [230]

     On the second page the 2000 will was dated 19 January 2000 and signed “B. B. McGettigan” and a signature which even to the lay eye looks very different to the various signatures on the 2016 will. And two attesting witnesses, Mary Cauchi and Mark Anthony Shaw have signed and given their address details.

189. [231]

     The Coulters’ case explains how the 2000 will was found and accounts for its custody after finding. Rhonda Coulter says, and the Court accepts all her evidence on the subject, that she found it in the office in the Tennyson property in a manila folder marked “will kit”, when she was searching at the Tennyson property in July 2018 after Beverley’s death. Rhonda Coulter recognised the handwriting on the 2000 will as that of her aunt Beverley. She was aware that Beverley had been searching for Brian’s will before her death and that Beverley had received correspondence from Mr McGettigan about Brian’s will. On 29 July 2018 Rhonda Coulter gave the will to her solicitor, Mr Mark Field.

190. [232]

     The Coulters’ case supporting the validity of the 2000 will included a 7 January 2000 letter from “Legal Wills Made Easy”, which Rhonda Coulter discovered at the same time and which appeared to confirm that Beverley McGettigan had purchased a will kit from it in January 2000.

191. [233]

     The 2000 Will Issues. Mr McGettigan raised several issues in relation to the 2000 will. He contended that the attesting witnesses, Mark Shaw and Mary Cauchi had not witnessed the will at all. He alleged the 2000 will was the product of fraud and forgery by several individuals. And he contended that the Coulters manufactured the letter from “Legal Wills Made Easy”.

192. [234]

     The Court rejects all Mr McGettigan’s contentions of fraud and forgery and finds that Mr Shaw and Ms Cauchi witnessed Brian McGettigan execute the 2000 will on the date that it bears. But the Coulters raised a preliminary question whether Mr McGettigan has standing to challenge the validity of the 2000 will.

193. [235]

     Standing. The Coulters argued that in the absence of proof of any other valid will benefiting him that Mr McGettigan did not have standing to challenge the validity of the 2000 will. Mr Brown submitted as follows. The 2000 will stipulated that Beverley was entitled to all of Brian’s assets in the event of his death. Even if the 2000 will was invalid, because Beverley survived Brian by 30 days she was entitled to the whole of his estate on an intestacy: Succession Act 2006, ss 107 and 111. Beverley would have been the only person with a “sufficient interest” in the 2000 will: Nobarani v Mariconte (2018) 265 CLR 236; (2018) 359 ALR 3; [2018] HCA 36 (‘Nobarani’).

194. [236]

     The relevant law may be shortly stated. An applicant seeking to challenge the validity of a will must first show that his or her rights would or might be affected if the will was found to be invalid: see eg Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137; Re Culina; Re Culina; Poulos v Pellicer [2004] NSWSC 504; Van Wyk v Albon [2011] VSC 120; Griffiths v Lewis (2013) 11 ASTLR 152; [2013] VSC 609. The High Court affirmed in Nobarani (at [49]), that a person has a “sufficient interest” if he or she has a right which would or might be “affected by the grant” of probate.

195. [237]

     Mr McGettigan does not have a “sufficient interest” in the 2000 will. The 2016 will favouring Mr McGettigan is false document including forged signatures. No earlier will of Brian predating the 2000 will exists. Such evidence as there is of an earlier will is speculation coming from Mr McGettigan and the Court does not accept it. If the 2000 will were declared invalid, Brian would have died intestate. And upon an intestacy, Beverley (and therefore, the Coulters under her undisputed will) would still inherit the whole of Brian’s estate as she survived him by more than 30 days: Succession Act 2006, ss 107 and 111. That is a complete answer to Mr McGettigan’s challenge to the 2000 will.

196. [238]

     But the Court heard extensive evidence about the circumstances of the execution of the 2000 will, which after challenge should be proved in solemn form. For the following reasons the Court is satisfied that the 2000 will is the validly executed and attested will of Brian McGettigan on the date that it bears.

197. [239]

     First, the Court accepts all the evidence of the two attesting witnesses Mr Shaw and Mrs Cauchi. They were both highly credible and reliable witnesses, who gave clear accounts of witnessing Brian’s 2000 will.

198. [240]

     Mr Shaw was an excellent witness who was a wholly reliable narrator of relevant facts. His evidence was closely consistent with that of the other attesting witness, Mrs Cauchi. Mr Shaw exhibited spontaneous recall of events surrounding execution of the will. Like Mrs Cauchi, he had a very well-preserved memory of the main events of the occasion of the execution of the 2000 will a little over 20 years ago. The Court accepts all his evidence.

199. [241]

     Mr Shaw is a farrier. He told the Court that in 2000 he had known Brian for roughly 10 years. During those 10 years or so, Mr Shaw would visit the Tennyson property “a couple of times a month” for the purpose of shoeing Brian’s and Beverley’s horses.

200. [242]

     Mr Shaw recounted his memory of witnessing the 2000 will. This was a time in his life, he told the Court, he could “remember...quite well”. He said the 2000 will was signed in the kitchen of the Tennyson property. While they were “having a cup of tea”, Beverley asked Mr Shaw: “Could you witness Brian’s will[?]” He saw Brian execute the will. Mr Shaw was shown a copy of the 2000 will, and he was able to identify his signature on it. The only gap in Mr Shaw’s memory was that he could not remember, one way or the other, whether the other attesting witness, Mrs Cauchi was present. But that is not entirely surprising. He had not met before January 2000 and did not meet her later.

201. [243]

     Mr McGettigan’s challenge to Mr Shaw’s evidence failed. Mr McGettigan’s initial cross-examination strategy was to refer to a telephone conversation which had undoubtedly taken place between himself and Mr Shaw around August 2020. Mr McGettigan put to Mr Shaw that, during this telephone conversation, Mr Shaw had stated to Mr McGettigan: “I’m not sure where I signed the [2000] will as a witness”. Mr Shaw firmly rejected this contention, stating: “No, because I do remember.”

202. [244]

     Mr McGettigan then expounded a theory in cross-examination about a person called “Darren”. The Court went to some lengths to understand who “Darren” might be and the relevance to the proceedings. It turned out that Mr McGettigan did not know Darren’s surname. Mr McGettigan said the police and others would not tell him Darren’s surname. Mr McGettigan claimed that Darren formed a “very close relationship” with Beverley in the last 6 to 8 months before she died. Mr McGettigan alleges that in 2017 or 2018 Darren in conspiracy with other unnamed persons approached Mr Shaw to go to the Tennyson property and sign the 2000 will as a witness but without seeing Brian execute it. Mr McGettigan explained Darren’s role this way:

203. [245]

     Mr McGettigan put to Mr Shaw that, during their August 2020 telephone conversation Mr Shaw told Mr McGettigan he knew “a person by the name of Darren”. Mr Shaw denied he had admitted any knowledge of Darren to Mr McGettigan in this conversation. The Court accepts Mr Shaw’s denial that he said this to Mr McGettigan and further accepts that Mr Shaw was not involved in 2017 or 2018 in the conspiracy alleged with any person, including one called “Darren”. Rather the Court accepts Mr Shaw’s evidence that he witnessed the 2000 will in January 2000.

204. [246]

     Other than in Mr McGettigan’s allegations there is no evidence that this person, “Darren” exists or that such a person played any role of the kind alleged in creating a false 2000 will. There is no basis for any allegation against Mr Shaw that he participated in a conspiracy to fabricate the 2000 will. This is perhaps the most prominent of several theories Mr McGettigan posited as to the origin of the 2000 will.

205. [247]

     Mrs Cauchi too was a reliable witness of truth. She had a very good memory of witnessing the January 2000 will. Her memory of the event was as good as could be reasonably expected and wholly consistent with that of Mr Shaw. She remembers Brian, Beverley and Mr Shaw being present. The accuracy of her testimony was not successfully challenged in any respect. The Court accepts all her evidence.

206. [248]

     In January 2000 Mrs Cauchi lived in the Tennyson district close to the Tennyson property. Mrs Cauchi came to know Brian and Beverley, because her husband had been a water carter in the district and her two children used to accompany him on his rounds, including to the Tennyson property. Through this meeting their children later came to work at the Tennyson property, from time to time assisting with painting fences and doing other odd jobs.

207. [249]

     Mrs Cauchi arrived at the Tennyson property on 19 January 2000 to collect her children after they had been working on the property. Whilst she was there Brian asked her to witness the 2000 will. Mrs Cauchi could recall in substantial detail various aspects about the Tennyson property. For example, she recounted that it was a “blonde coloured brick house” with “white fences”. She told the Court that she had been there numerous times over the course of two or three years to collect her children after work

208. [250]

     Mrs Cauchi said in her affidavit evidence that Brian signed the 2000 will “in the presence of me and of Mark Anthony Shaw”. She also confirmed that the signature of “Mary Cauchi” subscribed as a witness to the 2000 will was her signature. Mrs Cauchi’s evidence at trial including under cross-examination was entirely consistent with her affidavit.

209. [251]

     Mr McGettigan put some of the same allegations to Mrs Cauchi about the alleged conspirator “Darren”. Mrs Cauchi denied knowing anyone by the name of “Darren”. The Court wholly accepts her denial. Mr McGettigan did not pursue with her in cross-examination any further allegations of participation in a conspiracy with Darren to create a fraudulent will. There is no basis for any allegation against her that she participated in a conspiracy to fabricate the 2000 will.

210. [252]

     Mr Shaw and Mrs Cauchi did not know one another, although Mrs Cauchi knew Mr Shaw worked at the Tennyson property. But their versions of events relevant to the execution of the 2000 will substantially overlapped. Both witnesses testified that the 2000 will was witnessed during the afternoon, at the Tennyson property, and with both Beverley and Brian McGettigan present. There were few discrepancies between Mr Shaw’s and Mrs Cauchi’s testimonies. Mr Shaw recalls event being in the kitchen and Mrs Cauchi in the dining room, but the kitchen may have had dining facilities. Mr Shaw could not remember that Mrs Cauchi was also present when he witnessed the will.

211. [253]

     Mr McGettigan’s allegations of fraudulent conspiracy extended and forgery go beyond “Darren”. Mr McGettigan suggested that the Coulters’ solicitor, Mr Mark Field, and his father, Mr James Field, were also part of a wider conspiracy to defraud Brian’s estate. None of these serious allegations against either Mr Mark Field or Mr James Field has the slightest evidentiary basis, but they are recorded here for completeness and to show their lack of substance.

212. [254]

     Mr McGettigan put to Mr Mark Field in cross-examination that he, Mr McGettigan, and Mr Mark Field had a conversation on or around 29 August 2019 in the corridor of the Supreme Court, during which Mr Mark Field made admissions that he was “conspiring with the Coulters to defraud the estate and the [McGettigan] partnership”.

213. [255]

     Mr Mark Field denied he made any such admission, or that he was involved in any such conspiracy. Mr Mark Field acknowledged that he may have had a discussion in the corridor of the Supreme Court with Mr McGettigan on or around the suggested date, but he denied the substance of the allegations. The Court accepts Mr Mark Field made no such admissions. The evidence in these proceedings shows Mr Mark Field to be a highly competent and diligent solicitor and the Court judges him to be a reliable witness of truth. The Court accepts all his evidence.

214. [256]

     Mr James Field, Mr Mark Field’s father, also became the object of Mr McGettigan’s allegations of conspiracy. Mr James Field was admitted as a solicitor of this Court in 1966. Mr James Field knew Brian prior to his death. He had assisted with the conveyancing of the Tennyson property when Brian and Beverley purchased it in 1991. Mr James Field prepared Beverley’s will of 15 August 2018, but he did not prepare Brian’s 2000 will. Like his son Mr James Field was a reliable witness of truth and appeared through the evidence to be a highly competent and diligent solicitor.

215. [257]

     During cross-examination, Mr McGettigan put to Mr James Field that both Brian’s and Beverley’s wills had been “stolen” from the Tennyson property “in early October 2017”. It was not entirely clear to the Court how this allegation sat with Mr McGettigan’s earlier narrative that the 2000 will was forged in 2017 or 2018 by “Darren” and Beverley, but Mr James Field denied any knowledge of stolen wills. He did recall Brian’s brother-in-law, Mr John Hargreaves looking for Brian’s will after Brian’s death.

216. [258]

     Mr McGettigan then put to Mr James Field that when Brian was sick in hospital in February to March 2018 that at Beverley’s request he had taken the handwritten 2000 will to Brian in hospital to be signed. Mr James Field denied this allegation as well. The Court wholly accepts Mr James Field’s denials of any involvement in creating a false 2000 will for Beverley.

217. [259]

     Mr McGettigan put the “Darren” conspiracy to Rhonda Coulter. She threw some light upon who “Darren” was. She said she was aware that a man called “Darren” – and she was not sure of his surname – used to help with the horses at the Tennyson property. She said that Darren had known Beverley and Brian for about 30 years. Indeed, when Rhonda Coulter’s mother died Darren drove Brian and Beverley to her funeral. But nothing in her evidence supported the proposition that Darren was involved in any conspiracy to fabricate the 2000 will.

218. [260]

     Mr McGettigan varied the conspiracy theory with Rhonda Coulter. He put to her that she together with her aunt Beverley “compiled the handwritten [19 January 2000] will”. She denied that and the Court accepts her denial.

219. [261]

     Mr Brown tendered in the Coulters’ case (Exhibit 8) the letter dated 7 January 2000 from Mr Tim O’Brien, an Account Manager at ‘Legal Wills Made Easy’ (“the 7 January letter”), the letter that Rhonda Coulter found in the same folder as the 2000 will. The 7 January letter is addressed to Beverley at the Tennyson property. It congratulates her on “your purchase of the Legal Wills Made Easy” kit, and it claims the kit was based on advice from solicitors. The 7 January letter explains that the kit contained six different types of will forms with examples of how they should be filled in and that one should be right for “your personal circumstances”. The letter claims that the kit would “give you & your family real peace of mind by allowing you to make your own legally binding Will”. At the bottom of the letter a receipt, also dated 7 January 2004 shows receipt from Beverley of $74.90.

220. [262]

     The 7 January 2000 letter is strong evidence corroborating the Coulters’ case and of the evidence of Mr Shaw and Mrs Cauchi of the execution of the will on 19 January 2000. Where Rhonda Coulter found it, the fact that the 2000 will is filled out in Beverley’s handwriting and the fact that the receipt and letter are addressed to Beverley, all point to Beverley arranging the execution of the 2000 will which favoured her.

221. [263]

     But the 7 January letter became the subject of protracted dispute in the proceedings instigated by Mr McGettigan, including after the hearing. But to put this dispute in its proper context the Court’s conclusion that the 2000 will is a valid will does not depend upon this letter. With or without the 7 January letter, the Court accepts the evidence of the two attesting witnesses that the 2000 will was validly executed in their presence on 19 January 2000.

222. [264]

     Mr McGettigan sought three times to reopen his case to deal with aspects of the 7 January letter, Exhibit 8. His applications were made on 7 May 2021, 31 May 2021 and 6 July 2021. The first two applications were rejected. The third application was allowed, and further evidence was permitted to be adduced in Mr McGettigan’s case. But the Court did not find that additional evidence assisted Mr McGettigan’s case that the Coulters or Mr Field had forged the 7 January letter. The relevant procedural history is required to understand these outcomes.

223. [265]

     Exhibit 8. The 7 January letter emerged in the re-examination of Rhonda Coulter. Her first affidavit of 28 May 2019 described her discovery of the 2000 will but did not mention the finding of the 7 January letter at the same time. But after Mr McGettigan cross-examined her to suggest that she had forged the 2000 will, to attempt to re-establish her credit Mr Brown tendered Exhibit 8 in her re-examination, which took place on Wednesday, 7 April 2021. Mr McGettigan’s evidence commenced at about 3pm that same day. His cross-examination commenced and continued into the following day. He had his medical episode at the conclusion of the proceedings, at about 4:15pm on Thursday, 8 April 2021. The allotted hearing date of Friday, 9 April 2021 was vacated.

224. [266]

     A directions hearing took place on 21 April 2021 to ascertain Mr McGettigan’s ability to continue the hearing. At that directions hearing Mr McGettigan raised the issue of the tender of Exhibit 8 and applied to further cross-examine the Coulters in relation to it. The Court granted leave for that further cross-examination and arrangements were made to recall the Coulters on the last allocated hearing day, Friday, 7 May 2021.

225. [267]

     The 7 May 2021 Application. On 7 May 2021 Rhonda Coulter gave the evidence recorded earlier in these reasons that she had located the 7 January letter, Exhibit 8, in Beverley’s and Brian’s office at the Tennyson property in a manila folder along with the 2000 will. Mr McGettigan asked why the 7 January letter had not been presented to the Court earlier. Rhonda Coulter explained that she had taken Exhibit 8 to her solicitor, Mr Mark Field.

226. [268]

     Mr McGettigan suggested that the 7 January letter was a “forgery”. Rhonda Coulter rejected this, stating that such a suggestion was “[c]ompletely false”. Mr McGettigan put to Rhonda Coulter that she had inserted Beverley’s name at the top of the 7 January letter to manufacture the document. Rhonda Coulter again denied this, stating: “I would never do anything like that. I…completely deny that.” The Court wholly accepts her denial and that she is not the kind of person who would fabricate evidence.

227. [269]

     Mr McGettigan then attempted to put to her that Mr Tim O’Brien, a person who had been associated with the business of Legal Wills Made Easy in 2000, denied that it was his signature was at the foot of the 7 January 2000 letter. But the Court rejected that question. There was no basis for the question, because at that stage there was no evidence from Mr Tim O’Brien about his signature on the 7 January 2000 letter. Mr McGettigan had attempted to adduce evidence on 7 May that Mr O’Brien had denied his signature on the 7 January letter. He attempted to do this by means of an affidavit he had sworn on 6 May 2021, which attached a text message said to have been sent by Mr O’Brien to Pauline Dickson.

228. [270]

     But on 7 May the Court rejected this evidence on the grounds that it was hearsay, as Mr McGettigan was attempting to adduce evidence of a representation of fact from Mr O’Brien and to rely upon it as evidence of the fact without calling Mr O’Brien. Although Mr McGettigan’s 6 May 2021 affidavit was rejected on this occasion, Mr Brown tendered it subsequently on the 31 May 2021 Motion to demonstrate that the text messages upon which Mr McGettigan was relying were incomplete and possibly deliberately so. This is dealt with below.

229. [271]

     Mr McGettigan put the same allegations to Glen Coulter. He responded that it was “[c]ompletely false” to suggest either he or Rhonda Coulter had manufactured the 7 January letter. The Court wholly accepts his denial and that he is not the kind of person who would fabricate evidence.

230. [272]

     Mr McGettigan also cross-examined Mr Mark Field in relation to the 7 January letter. Mr Mark Field gave evidence that he had received the 7 January letter from Rhonda Coulter on or around 29 July 2018, when he first received the 2000 will from her. Mr McGettigan asserted again that Rhonda Coulter had manufactured the letter. But Mr Mark Field replied: “My only answer can be that this was a document given to me by Rhonda…I can’t testify as to how Rhonda came to receive this document”.

231. [273]

     Mr Field said he believed that the photocopy which was tendered and became Exhibit 8 was different from a slightly coloured original which was in the manila folder. He could not locate the original. He thought he had given it to counsel, Mr Brown. Mr Mark Field’s testimony as to the receipt of Exhibit 8 from Rhonda Coulter and his subsequent management of the document is wholly accepted. The Court rejects as without foundation any contention that he was involved in a conspiracy to manufacture false evidence.

232. [274]

     The recall of these three witnesses concluded. Final oral submissions commenced. The proceedings concluded later that day and the Court reserved judgment. But Mr McGettigan filed a Motion to reopen his case about three weeks later.

233. [275]

     The 31 May 2021 Motion to Reopen. On 31 May 2021, Mr McGettigan filed a Motion to reopen his case. The Motion sought the following orders: (1) to reopen Mr McGettigan’s case; (2) to accept the affidavit of Pauline Dickson sworn 28 May 2021 as evidence; (3) to use the affidavit of Pauline Dickson to show that the receipt with the 7 January 2000 letter was a forgery and that therefore the 2000 will is likely to be a forgery; and (4) that Mr McGettigan be given consideration as a self-represented litigant with a witness, Pauline Dickson, who could not have an affidavit sworn readily because of her geographical location. The Court relisted the proceedings on 16 June for the hearing of this Motion.

234. [276]

     In support of the 31 May 2021 Motion, on 16 June Mr McGettigan read an affidavit of Pauline Dickson sworn on 28 May 2021. The affidavit attached the same text messages that were said to have been exchanged between Mr Tim O’Brien and Pauline Dickson in relation to the 7 January 2000 letter, Exhibit 8, which had also been attached to Mr McGettigan’s 6 May 2021 affidavit. Pauline Dickson’s first message contained a copy of the 7 January 2000 letter:

235. [277]

     The text messages attached to Pauline Dickson’s 28 May 2021 affidavit give the impression that Mr O’Brien is casting doubt on the authenticity of the 7 January 2000 letter. But this impression was misleading by omission. At the hearing on 16 June the Coulters read an affidavit of Mr Mark Field sworn on 15 June 2021, which attached further text messages from Mr O’Brien in the exchange that had taken place between himself and Pauline Dickson. The additional text messages exchanged between the pair give the opposite impression:

236. [278]

     Mr O’Brien’s additional text message founds an inference that the relevant will kit was probably sold by Legal Wills Made Easy. As will be seen, Mr O’Brien’s subsequent affidavit sworn for the 6 July 2021 Motion makes this inference even stronger.

237. [279]

     The Coulters made clear through their counsel Mr Brown that they contended that the text messages attached to both Mr McGettigan’s affidavit of 6 May 2021 and Pauline Dickson’s affidavit of 28 May 2021 had been manipulated to present a deliberately false impression. As it appeared that Mr McGettigan was responsible for putting these affidavits together, the Court cautioned him that if he were attempting to rely upon falsely manipulated material that it could have serious consequences, and that he should take care both about advancing these affidavits and about what he said to the Court in relation to them. Despite this caution, Mr McGettigan read Pauline Dickson’s affidavit on his 31 May 2021 Motion.

238. [280]

     Mr McGettigan’s advancing of the incomplete text messages attached to these affidavits seriously damaged his credibility. As the person responsible for constructing and advancing the two affidavits he either was aware of the additional text message from Mr O’Brien, or he failed to make any proper inquiries about the completeness of the exchange of text messages that he was advancing. The least damaging inference to him is that he is careless with the truth. The Court does not draw any adverse inference against Pauline Dickson from this material. Her 28 May 2021 affidavit was unsworn. There is no evidence she had any part in its construction.

239. [281]

     Mr Brown submitted that the 31 May 2021 Motion should be dismissed, on the basis that the Court had already, in substance, rejected the material contained in Pauline Dickson’s affidavit on 7 May 2021 as inadmissible hearsay. Mr McGettigan argued that his case should be reopened because Pauline Dickson’s version of the affidavit annexing the text messages could not be sworn in time. But the Court reminded Mr McGettigan during argument that this contention could not be right because Pauline Dickson had given evidence on the last day of the trial on 7 May 2021, the same day Mr McGettigan’s 6 May 2021 affidavit annexing the same text messages had been rejected as inadmissible hearsay evidence.

240. [282]

     Mr McGettigan further contended that he had “spoken to a lawyer” since the final hearing, who advised him that he should submit an affidavit “signed by Mrs Dickson as soon as possible”. Mr McGettigan explained his failure to previously file such evidence, as an oversight due to his “ignorance of the law”. But the Court explained to Mr McGettigan that Pauline Dickson’s new affidavit was also inadmissible as hearsay and that the only person who could explain this issue to the Court was Mr O’Brien himself. The Court reminded Mr McGettigan that, if he had wanted to test Mr O’Brien’s evidence, this could have been done at an earlier stage of the hearing.

241. [283]

     Mr McGettigan then changed tack and asked whether he could approach Mr O’Brien for an affidavit. But the Court explained that Mr McGettigan could have anticipated the need to obtain direct evidence from Mr O’Brien during the hearing in May, the 7 January 2000 letter having been admitted into evidence on 7 April 2021.

242. [284]

     Mr McGettigan nevertheless pressed for his case to be reopened to call Mr O’Brien. He submitted that the evidence Mr O’Brien would give would be “absolutely critical” to the question of the validity of the 2000 will.

243. [285]

     The Court rejected Mr McGettigan’s application to reopen his case and dismissed his Motion of 31 May 2021 with costs. The Court indicated at the time that it would give reasons for its rejection of the 31 May 2021 Motion with final judgment in the proceedings.

244. [286]

     Those reasons may be shortly stated. The Court rejected Pauline Dickson’s unsworn affidavit of 28 May 2021. Mr McGettigan said he was not calling Mr O’Brien as a witness, so the text messages from Mr O’Brien attached to her affidavit were inadmissible hearsay. They would not have become admissible even if Pauline Dickson had sworn the affidavit. There was thus no evidence in support of the reopening application.

245. [287]

     But when Mr McGettigan applied for an adjournment to call Mr O’Brien, other considerations came into play. One month had lapsed between the tendering of Exhibit 8 and the final day of the hearing. Although Mr McGettigan was admitted to hospital for observation after his collapse in Court on 8 April 2021, he was able to attend a directions hearing on 21 April and give a good account of himself. If he had wanted to call Mr Tim O’Brien to give evidence, he could have issued a subpoena to him returnable for the resumption of the proceedings on 7 May 2021. But he did not do so and did not give an adequate explanation for this failure.

246. [288]

     One other feature of the 31 May 2021 Motion should be mentioned. In support of the Motion Mr McGettigan filed written submissions that made serious allegations of a fraudulent conspiracy involving to the Coulters, Mr Mark Field, Mr James Field and Mr Brown of counsel to mislead the Court by advancing a forged 2000 will and a forged 7 January 2000 letter. The relevant evidence concerning both these documents has been extensively discussed in these reasons. There is nothing in that evidence that gives the slightest basis to infer that any of these individuals were involved in such a fraudulent conspiracy. The making of such baseless allegations further seriously damaged Mr McGettigan’s credibility, showing that he will make any allegation, however baseless, if he thinks it will advance his financial interests.

247. [289]

     At the conclusion of the hearing of the 31 May 2021 Motion on 16 June, the Court ordered that the parties no longer correspond with my Chambers until judgment is delivered in these proceedings unless by way of a formal application to reopen the case: the orders were similar but not identical to Kunc J’s decision in Ken Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971. These orders were made because Mr McGettigan had been corresponding frequently with my Chambers indicating he wished to reopen his case. It was emphasised to him that he could apply formally by Motion to reopen his case, but the Motion would need to be filed in the Registry and the filing fee paid before it would be heard.

248. [290]

     He ultimately took advantage of that process. On 21 June 2021, Mr McGettigan emailed my Associate enclosing a further Notice of Motion to reopen the case, together with the copy of an affidavit of Mr Tim O’Brien sworn 21 June 2021. After further correspondence with my Chambers leading to confirmation of the payment of the relevant filing fee, this Motion was treated as filed on 6 July 2021.

249. [291]

     The 6 July 2021 Motion. The Court directed that the 6 July 2021 Motion be heard in Chambers. The Motion sought orders in an unconventional form but in substance the orders sought were: to reopen Mr McGettigan’s case; and on the basis of Mr O’Brien’s affidavit to infer that the 7 January 2000 letter and its associated receipt were a forgery; and then to have the NSW Police investigate whether a fraud had been committed in the submission of the 7 January letter for the purposes of giving credibility to the forgery of Brian’s 2000 will.

250. [292]

     Whether or not the NSW Police should be involved, the Court examined the evidence on the 6 July 2021 Motion to see whether it could base an inference that 7 January 2000 letter or the associated receipt could be a forgery and therefore could lead to the inference that advancing of such a forgery in support of the 2000 will may cast suspicion upon the 2000 will.

251. [293]

     In support of the Motion Mr McGettigan read the affidavit of Mr Tim O’Brien. The Coulters did not seek to have the proceedings relisted to cross-examine Mr O’Brien but filed written submissions in response to the Motion. The Court indicated that it would include its decision on the Motion with final judgment in the proceedings.

252. [294]

     Mr O’Brien’s affidavit was in proper form and largely overcame the hearsay objections fielded against the evidence advanced in support of the 31 May 2021 Motion. The Court therefore has decided that it may be read, not only on the Motion but it was also admitted as evidence in the proceedings.

253. [295]

     The Court did not ask the Coulters whether they wished to cross-examine Mr O’Brien because his evidence casts doubt neither upon the authenticity of the 7 January 2000 letter nor the accompanying receipt, Exhibit 8, as genuine documents of Legal Wills Made Easy. Nor does his evidence suggest that they are the product of a forgery.

254. [296]

     Brief analysis of Mr O’Brien’s evidence makes this clear. In 2000 Mr O’Brien did not own Legal Wills Made Easy but was working with the owners of the business to assist in generating online sales. In 2000 the Legal Wills Made Easy will kit was a product sold online and through a telephone call centre, with both channels acting as independent distribution centres. Mr O’Brien was only involved in the online sales, not the call centre. For online sales a simple receipt was printed rather than a receipt in a letter format such as Exhibit 8, the 7 January 2000 letter. The 7 January 2000 letter and receipt appears to Mr O’Brien to be valid, but it was not issued by him in online sales but was likely to have been issued by the call centre part of Legal Wills Made Easy.

255. [297]

     Mr O’Brien continues. The signature on the receipt with the 7 January 2000 letter is not Mr O’Brien’s although it is above his name but he says “for convenience, the call centre may have used my name as the customer service representative against a pre-signed (printed) template”. He is of the view that the receipt appears to be genuine because: (1) the letterhead is almost certainly that used by Legal Wills Made Easy; (2) the amount of the receipt coincides with an amount the call centre would have charged for two copies of the will kit and (3) the explanatory text in the letter that details the key features of the will kit is consistent with the marketing copy that was used to promote the kit at the time. Mr O’Brien does not have access to any records from the call centre from January 2000 to either confirm or deny whether this sale was made through Legal Wills Made Easy on that date.

256. [298]

     This evidence substantially supports the genuineness of the 7 January 2000 letter and receipt. Apart from Mr O’Brien pointing out that the signature above his name is not his, he is content to assume that his name was just being used by the call centre as “Account Manager”, because the rest of the document seems to him to be obviously genuine. If the document is a forgery, it lacks any of the tell-tale signs of inconsistency with known contemporaneous objective facts. The only inconsistency pointed to is the signature, which can be explained. It is true that Mr Field could not find the original of Exhibit 8. But there may never have been an “original”. Exhibit 8 may have been emailed to Brian and Beverley.

257. [299]

     It is now convenient to consider together the conclusion on the 6 July 2021 Motion with the Court’s assessment of the allegations of forgery of the 2000 will.

258. [300]

     The main point of Mr McGettigan relying upon evidence about Exhibit 8 is to cast doubt upon the 2000 will, which Exhibit 8 is said to support because it was found with the 2000 will. But there is powerful credible direct evidence that the Court can weigh in the balance against the inference that Exhibit 8 is a forgery. The first such direct evidence is Rhonda Coulter’s highly credible testimony of finding Exhibit 8 with the 2000 will and her denial of forging either document, evidence the Court entirely accepts. This is supported by Mr Field’s highly credible testimony of receiving both documents from Rhonda Coulter in July 2018. In addition to this the Court accepts the genuineness of the 2000 will found with Exhibit 8 based on the high credibility of its attesting witnesses Mr Shaw and Mrs Cauchi.

259. [301]

     Exhibit 8 is genuine and therefore strongly supports the inference of the genuineness of the 2000 will. It shows Beverley obtaining a will kit shortly before the 2000 will was made.

260. [302]

     Mr McGettigan’s 6 July 2021 Motion has succeeded to the extent of the case being reopened and Mr O’Brien’s affidavit of 21 June 2021 being read. But the substance of the Motion, orders 3, 4 and 5 have been dismissed with costs. These orders were entered on 26 August 2021 and communicated to the parties.

261. [303]

     Mr McGettigan’s allegations of forgery of the 2000 will fail for several reasons other than the genuineness of Exhibit 8 and the credibility of the attesting witnesses of the 2000 will and of Mr Mark Field.

262. [304]

     First, the 2000 will is an original handwritten will. Ms Melanie Holt’s expert evidence is consistent with the document being executed by Brian McGettigan and attested by Mr Shaw and Mrs Cauchi.

263. [305]

     Secondly, the 2000 will is rational. Whatever the state of Brian’s and Beverley’s relationship, it is rational for one spouse to confer substantial testamentary benefits on another after 50 years of marriage.

264. [306]

     Third, the 2000 will was found in the office at the Tennyson property by Rhonda Coulter in the days succeeding Beverley McGettigan’s death. This is a likely place for Brian and Beverley to keep the will.

265. [307]

     Fourth, there is no credible theory to explain how else the 2000 will came into existence other than by genuine execution. Mr McGettigan’s spray of allegations that the 2000 will is a forgery were vague, inconsistent and fanciful and cast no doubt upon the natural inference arising from the finding of the document. The lack of substance of these allegations is important background in assessing Mr McGettigan’s case in the equity proceedings.

266. [308]

     The Coulters should have the relief that they seek in the probate proceedings. The Coulters challenge the 2016 will on the basis: that Brian lacked knowledge and approval, arising out of suspicious circumstances; that there was a lack of proper attestation; and that the will is the product of fraud.

267. [309]

     The relevant legal principles in relation to knowledge and approval are not in dispute. They are conveniently summarised by Isaacs J in Nock v Austin (1918) 25 CLR 519; (1918) 25 ALR 88; [1918] HCA 73 at 528 and they were more recently set out in Mekhail v Hana; Makail v Hana [2019] NSWCA 197 and need not be further restated here. This is a clear case, which does not call for any nuanced application of these principles.

268. [310]

     The multiple circumstances identified in these reasons surrounding the 2016 will undoubtedly “excite suspicion”, placing the burden of proving knowledge and approval of the document on Mr McGettigan. Indeed, the Court’s findings show that the circumstances surrounding the 2016 will, and the document itself, clearly demonstrate that the document is not a will of which Brian McGettigan knew and approved: it was created by Mr McGettigan after his death.

269. [311]

     The Court’s findings also readily justify the conclusion that the 2016 will was not properly attested by the witnesses who purport to have attested it and that it is indeed the product of a fraud, being a false document created by Mr McGettigan. These is no credible evidence that anyone other than Mr McGettigan handled or propounded or can account for the origins of the false 2016 will, which benefits him. Every circumstance points to him being the author of this false document.

270. [312]

     Although Mr McGettigan’s case, which he had no standing to bring, alleges that the circumstances surrounding the execution of the 2000 will were suspicious, the Court does not see any grounds for suspicion surrounding its execution. The Court’s findings allow it to be entirely satisfied: that the deceased, Brian McGettigan, knew and approved the contents of the 2000 will; that it was properly witnessed; and that it is not the product of or tainted by any fraud. Elizabeth Hargreaves, the named alternate executor of the 2000 will, renounced probate on 7 August 2018.

271. [313]

     The Coulters obtained a grant of probate of Beverley’s estate on 6 December 2018. Brian’s estate passes to Beverley’s estate under the 2000 will. The Coulters are the sole beneficiaries under Beverley’s will. They are therefore well qualified to take a grant of administration of Brian’s estate cum testamento annexo to administer Brian’s estate under the 2000 will and the Court will grant them that relief. Mr McGettigan’s Cross-Claim in the probate proceedings will be dismissed. The Coulters will have a costs order in their favour.

The Equity Proceedings

1. [314]

   In the equity proceedings, Mr McGettigan seeks the following orders and declarations in his Amended Statement of Claim filed on 17 April 2020:

2. [315]

   The Coulters allege that none of the documents that Mr McGettigan has advanced in the equity proceedings are genuine and that he has manufactured them well after the dates that they bear in order to substantiate his fraudulent claim to Brian’s estate. They further allege that all the signatures on these documents, other than Mr McGettigan’s signature, are forgeries.

3. [316]

   The Coulters’ case in the equity proceedings is persuasive for the reasons outlined below. Each document will be considered in turn. But first, some of the ancillary relief sought in the equity proceedings is ineffectual or is unsupported by evidence.

4. [317]

   Prayer for relief (g), seeks to set aside the orders made by Parker J granting possession of the Tennyson property to the Coulters on the grounds that the Coulters did not serve their Summons before interlocutory relief was obtained.

5. [318]

   This claim for relief can be dismissed. First, it is futile as the Tennyson property has been sold and the proceeds of sale paid into Court. Revisiting Parker J’s orders giving the Coulters possession of the Tennyson property has no conceivable utility. Second, Mr McGettigan should have taken immediately any argument about an alleged denial of procedural fairness. Third, ex parte relief was available. Fourth, the Court does not accept Mr McGettigan’s claim that he was not served with process in time. He appeared before Parker J.

6. [319]

   Prayer for relief (j), seeks orders that Field Lawyers serve upon the person “who is known to the plaintiff only has Darren” an order not to approach within 250 metres of the Tennyson property. Given the sale of the Tennyson property this claim for relief is equally pointless. Moreover, there is no evidence that the Court accepts that any person called “Darren” was acting in concert with the Coulters or Field Lawyers to the disadvantage of Mr McGettigan.

7. [320]

   The other relief claimed in the Amended Statement of Claim relates to the 1991 ownership agreement (namely prayers for relief (a) – (d)), the 1997 sale agreement (namely prayer for relief (e)), or the 2016 sale agreement (namely prayer for relief (f). And finally, prayers for relief (h) and (i) relate to Mr McGettigan’s case that the Coulters misapplied money belonging to the McGettigan Ownership Group (“McGOG”) and that they have failed to recognise the leases Mr McGettigan alleges that Brian and Beverley granted in his favour over the Tennyson property.

8. [321]

   Mr McGettigan claims relief in the equity proceedings in respect of seven legal instruments that he says he entered with Brian and Beverley between 1991 and 2016, namely the three partnership/sale agreements and the four July 2016 leases. Each of these has been identified and defined earlier in these reasons. Mr McGettigan claims they are all valid, but the evidence shows that they are likely to have been fabricated based on much the same motivation as Mr McGettigan’s fabrication of the 2016 will. Each document will be considered in turn.

9. [322]

   But the starting point for considering all seven contested instruments is Mr McGettigan’s lack of credibility, already well-established in the probate proceedings. The Court does not accept his oral evidence, unless it is inherently plausible, coincides with other objectively verifiable or uncontested facts or coincides with the evidence of other credible witnesses. But the authenticity of each of the seven instruments depends, in most cases wholly, but in some cases substantially, upon Mr McGettigan’s evidence. Not only does the objective evidence not support an inference that the seven instruments are authentic, but it supports the opposite inference that the instruments have been created after the event and that they do not bear the genuine signatures of at least some of the parties. And the evidence of other witnesses does not support the authenticity of these instruments. Moreover, the Court’s usual reluctance to draw inferences of fraudulent conduct against an individual such as Mr McGettigan (see Evidence Act, s 140(2)(c) and Briginshaw v Briginshaw (1938) 60 CLR 336) is significantly diminished where these reasons have already demonstrated that that he fraudulently created and propounded the 2016 will.

10. [323]

    The 1991 ownership agreement. Mr McGettigan propounds a document entitled “McGettigan Owership [sic] Group Contract” dated 1 October 1991, defined in these reasons as the “1991 ownership agreement”. The document appears to have been executed between Brian McGettigan, Beverley McGettigan, Margaret Hargreaves, and Mr McGettigan. It is a legally confusing and poorly drafted document. It is riddled with spelling and grammatical errors, even to the point of misspelling ownership as “owership” [sic] in the title.

11. [324]

    The central feature of the document is that it appears to acknowledge that between them Brian and Beverley are only beneficially entitled to one third of the Tennyson property and the other two thirds are co-owned by Mr McGettigan and his mother, Margaret Heather McGettigan. The full text of the document is reproduced below.

12. [325]

    The 1991 ownership agreement bears many markers of recent invention. It first surfaced in August 2020, itself a surprising fact for a 29-year-old document, which refers to a 31-year-old partnership agreement dated 25 June 1979. No evidence contemporaneous with execution of the 1991 ownership agreement demonstrates either that stamp duty was paid on it or that it was transmitted by letter either among the parties or into safekeeping, or that after the common use of email it was emailed to anybody in the decades before August 2020.

13. [326]

    Mr McGettigan has enough legal and financial sophistication to understand the significance of caveats but from 1991 no caveat was lodged over the Tennyson property purporting to protect the interests allegedly created by the 1991 ownership agreement, despite clause 18 specifically providing for that possibility. Mr McGettigan saw fit to place a caveat on the Tennyson property on 17 April 2018 to protect his invention of the 2016 will but it seems never to have occurred to him to caveat the interest provided by what he alleges was the long-standing 1991 ownership agreement.

14. [327]

    The 1991 ownership agreement refers to a pre-existing partnership, the McGettigan Ownership Group (shortened to “McGOG”), which Mr McGettigan says was operative as far back as 1951. But Mr McGettigan advances no partnership deeds, financial accounts, bank statements or other supporting documents to demonstrate the existence of such a partnership. And Mr McGettigan only registered the business name “McGettigan Ownership Group” with the Australian Securities and Investments Commission (“ASIC”) as a business name on 28 April 2020, after commencement of these proceedings. And Mr McGettigan only first identifies the McGOG in his Amended Statement of Claim filed on 17 April 2020.

15. [328]

    Beverley never mentioned the 1991 ownership agreement to the Coulters, nor any pre-existing McGOG partnership, even though Brian and Beverley were very dependent upon the Coulters for personal assistance in the last five years of their lives.

16. [329]

    To attempt to explain why the 1991 ownership agreement had not been provided to the Coulters or to the Court before August 2020, Mr McGettigan deposed in an affidavit of 11 August 2020 that he had been wrongly advised by a solicitor not to serve either it, or the 2016 sale agreement:

17. [330]

    No solicitor gave evidence to support this explanation, and no written advice was produced to substantiate it. But it does not accord with the rest of Mr McGettigan’s case, which is of Mr McGettigan taking his own counsel and carefully preparing the 1991 ownership agreement himself 30 years earlier without taking legal advice. It is impossible to accept that Mr McGettigan had by 2018 such respect for the legal advice he was given by this unnamed solicitor that he would decide not to rely upon a document he says he had purposefully created to protect his long-term interests.

18. [331]

    The 1991 ownership agreement is an inherently implausible document. Mr McGettigan’s case depends upon Beverley having knowledge of the 1991 ownership agreement: he says she signed it. But Beverley is unlikely to have done so. She behaved quite inconsistently with her having knowledge of it. The evidence indicates Beverley was astutely conscious of her own financial self-interest. This is no better demonstrated than in her arranging for Brian to make the 2000 will. She is unlikely to have executed the 1991 ownership agreement surrendering a beneficial interest in two thirds of the Tennyson property without some protest at the time, or correspondence disputing it later. Neither Brian’s 2000 will which she drafted, or her own will, give the slightest indication that she was conscious that she and her husband only beneficially shared one third of the Tennyson property rather than the whole property.

19. [332]

    And why would Beverley sign such a disadvantageous document? Mr McGettigan, whose evidence and courtroom statements about Beverley the Court observed for days, would have been incapable of concealing his contempt for her in life. Mr McGettigan’s case offers no credible theory as to why she would sign over title to the control of someone who so obviously disapproved of her and disliked her. And the Court accepts Glen Coulter’s evidence that Beverley said to him that Mr McGettigan “cannot be trusted” as indicative of her attitude to Mr McGettigan. Mr McGettigan’s case accepts that Beverley was very interested in conducting businesses of her own independently of her husband. But it does not begin to explain why someone with her business acumen and independent outlook would surrender the single largest asset she had accumulated with her husband and place her future residential security at risk and apparently without legal advice.

20. [333]

    There are no competent witnesses or parties to the 1991 ownership agreement who might give support in oral testimony to the validity of the agreement, other than Mr McGettigan. Brian and Beverley are deceased. Mr McGettigan’s mother is deceased. Mr John Buckley was not a competent witness. His almost incomprehensible evidence is discussed further below. He was a witness to many of the other documents that Mr McGettigan propounds. Mr Buckley’s apparent loss of capacity to give reliable evidence is perhaps explicable by reason of the period since he witnessed a genuine 1991 ownership agreement. But his present incapacity may also be a convenient cloak to give superficial witness authenticity to a recently crafted document that pretends to be older.

21. [334]

    Margaret Hargreaves does not even indirectly support the authenticity of this document. She thought that Brian and Mr McGettigan had been working together for a long time, since they were at school. But her evidence gives no confidence that she understood the details of their financial relationship and she just “assumed they always had a partnership”.

22. [335]

    And there is no true “original” of the 1991 ownership agreement showing the impress of the signatures of the parties and witnesses upon it. The Court and the handwriting expert, Ms Melanie Holt only ever had access to photocopies. Mr McGettigan advanced no explanation for failing to produce a true original of a document that on his own case he had drafted and arranged to be executed and had every reason to keep safe. Ms Holt analyses many of the documents Mr McGettigan advances in the equity proceedings. Her relevant evidence on this subject is dealt with together below.

23. [336]

    The Coulters’ final written submissions validly criticise the legal rationality of aspects of the 1991 ownership agreement. They submit as follows:

24. [337]

    But even on Mr McGettigan’s version of the 1991 ownership agreement he drafted it without the direct assistance of lawyers. A degree of clumsiness is to be expected from the legally untrained imitating legal forms. But one more remarkable feature of the 1991 ownership agreement is that it takes some care (in clause 15) to explain why Brian’s and Beverley’s names are the only ones appearing as tenants in common on the title to the Tennyson property, even though they only owned one third of it. In a genuine agreement it might be expected that clause 15 would also confer upon the co-owners a right to have their names placed on the title, rather than just a right to caveat. It is probable Mr McGettigan created the 1991 ownership agreement, conscious of the need for him to explain why the title to the Tennyson property remained in Brian’s and Beverley’s names.

25. [338]

    The 1997 Sale Agreement. Mr McGettigan also propounds a document titled “Sale and Purchase Agreement” said to be dated 27 December 1997. The document purports to have been made between Brian McGettigan, Beverley McGettigan, Margaret Heather McGettigan (Mr McGettigan’s mother) and Mr McGettigan. The 1997 sale agreement reconfirms the three parties to the McGOG ownership group, or partnership, that had been referred to in the 1991 ownership agreement: Brian and Beverley – owner 1, Mr McGettigan’s mother – owner 2 and Mr McGettigan – owner 3.

26. [339]

    The 1997 sale agreement purports to sell Margaret Heather McGettigan’s one third ownership share to Mr McGettigan. But the price to be paid for the sale is obscure. No definite price is fixed for payment to Margaret Heather McGettigan but the sale is subject to an agreement (clause 6) that if the Tennyson property or “any other McGOG property” including physical assets is sold by Brian or Beverley then “the buyer pays to the seller 90 percentage (90%) of the total net receipts of the sale of the ownership unit sold and/or recovery and any other physical assets sold”. In the meantime, Mr McGettigan pays his mother $100 (clause 7). As with a 1991 ownership agreement it is very difficult to work out what is the actual legal effect of this document. Its legal obscurity is reason to doubt its authenticity.

27. [340]

    But it is allegedly executed by Margaret Heather McGettigan and Mr McGettigan and witnessed by Mr Buckley. Mr Buckley’s evidence is dealt with below and the Court places no reliance upon it. Margaret Heather McGettigan is deceased. The Court does not accept any of Mr McGettigan’s evidence about the 1997 sale agreement other than the indisputable facts associated with his presentation of it to the Court. There is no evidence of it being used or sent between any parties or being referred to in any other authentic document at any time since 1997. The Court does not have an original impressed with the signature pen of the purported signatories of the document.

28. [341]

    The Court does not accept the 1997 sale agreement as a genuine document of the kind it purports to be. Mr McGettigan is wholly responsible for the handling and production of the document and claims to benefit under it. The most likely explanation for its existence is that it is a false document that he created.

29. [342]

    The 2016 Sale Agreement. Mr McGettigan also propounds a one-page typed document titled “Debt and Sale Settlement Agreement” purportedly dated 26 July 2016. The agreement was purportedly made between Brian McGettigan as the “debtor” and Mr McGettigan as the “creditor”. The 2016 sale agreement bears signatures at the foot that purport to be those of Brian McGettigan and Mr McGettigan and to be witnessed by Mr John Buckley. The terms of the 2016 sale agreement were as follows:

30. [343]

    Once again, there are many problems with the Court accepting this document as genuine. Anything that comes from Mr McGettigan must be suspect given the Court’s previous findings about his production of false documents. No competent living person other than Mr McGettigan can vouch for the 2016 sale agreement and the Court does not accept his evidence about it other than the indisputable facts associated with his presentation of it to the Court.

31. [344]

    The legal operation of the 2016 sale agreement is obscure and it is wholly implausible that Brian would have signed such a document. The agreement purports to “replace all previously dated debt and sale agreements” but it is unclear what the previous agreements are. It records a debt owed by Brian McGettigan to Mr McGettigan although it does not specify the amount of the alleged debt, where the debt is recorded, how exactly it was first incurred, what interest is charged and accumulated on the debt and how the debt in question is to be distinguished from other debts. The 2016 sale agreement includes terms which if acted upon would be very favourable to Mr McGettigan: it revives enforceability of debts apparently barred by the statute of limitations (clause 5); it transfers Brian’s one sixth of the McGOG ownership structure that he is said to share with Beverley apparently disadvantaging him and her in consideration for an ill-defined benefit (clause 7); it purportedly makes Mr McGettigan a co-owner of the Tennyson property with Beverley, it allegedly being an asset of the McGOG ownership group (clause 8); it is non-cancellable (clause 11); and it gives Mr McGettigan power to deal with Brian’s and Beverley’s property (clause 13). It is to be wondered why Brian would enter it at all, given that the 2000 will and the other evidence that the Court has accepted shows that he was sincerely solicitous of Beverley’s financial interests.

32. [345]

    Many of the other usual criticisms of Mr McGettigan’s documents apply to the 2016 sale agreement. There is no evidence it was ever used or sent between any parties or been referred to in any other authentic document at any time since its alleged creation in 2016. The Court does not have an original impressed with the signature pen of the purported signatories of the document.

33. [346]

    The Court does not accept the 2016 sale agreement is a genuine document. Again, Mr McGettigan is wholly responsible for the handling and production of this document and claims to benefit under it. The most likely explanation for its existence is that it is a false document that he created.

34. [347]

    The 2016 Lease Agreements. Mr McGettigan has advanced at least four written documents which purport to be lease agreements in respect of the Tennyson property in July 2016. The first lease is dated 16 July 2016; the second is dated 17 July 2016, the third is dated 24 July 2016; and the fourth is dated 26 July 2016, although at least two separately executed leases are dated with the date 26 July 2016. The lease agreements are made between Mr McGettigan as tenant and Beverley and Brian McGettigan as landlords. Each lease agreement is a 6-page typed document.

35. [348]

    The Court does not accept any of the leases as genuine documents. They are quite implausible instruments that do not fit with the known facts. Like the other documents he has advanced, Mr McGettigan is likely to have created them to suit his purposes, which at the time of their probable creation, at the time of Beverley’s funeral in 2018, was to justify his taking possession of the Tennyson property.

36. [349]

    Reliable evidence about execution of the leases is non-existent. The landlords are deceased. The Court does not accept Mr McGettigan’s evidence about them. Some of these leases were said to have been witnessed by Cecilia Zhan. But the Court does not accept that Cecilia Zhan exists.

37. [350]

    It is not necessary to reproduce the terms of these leases but some of their more important provisions are identified here. The first and second lease agreements differ from the third and fourth lease agreements. The first and second lease agreements permit Mr McGettigan (as tenant) to occupy the Tennyson property “to provide safe sanctuary for the Landlords (sic) much loved champion horses and the preservation of the property”. But the third and fourth lease agreements, although mentioning the horses on the Tennyson property, also refer for the first time (clauses 27 to 30) to an obligation upon the landlords to pay the sum of $260,000 to the “Christmas Lodge Horse Welfare Trust” (“the Horse Trust”) for the upkeep of the horses, and create a debt allegedly owing by Brian and Beverley in that sum. Later when the proceedings were underway, when he realised he needed to have this debt owing to himself Mr McGettigan purportedly set himself up as the trustee of the Horse Trust.

38. [351]

    Once again, the leases show signs of recent invention. Mr McGettigan first sent the lease dated 17 July 2016 to Mr Mark Field by email on 14 January 2019. The lease dated 26 July 2016 was put in evidence on 16 February 2021, as an annexure to an affidavit of Mr McGettigan sworn that same day. Despite their potentially decisive significance to Mr McGettigan defending the proceedings brought before Parker J in August 2018 to remove Mr McGettigan from the Tennyson property, he inexplicably did not immediately deploy them. The Coulters submit that was because they did not then exist and that is probably the best explanation. Mr McGettigan’s explanation is that he did not want to create an aggressive situation. The Court does not accept that explanation and it is at odds with his taking possession of the property during Beverley’s funeral. And the Coulters, who knew Brian and Beverley well, were told nothing about these leases, which were never registered or caveated by the tenant. There is no objective evidence of Brian or Beverley taking actions consistent only with granting any of the leases.

39. [352]

    Mr McGettigan could give no satisfactory explanation of why there were four executed lease agreements, each being separately dated but all within 10 days of one another and with slightly varied terms. Mr McGettigan asserted that the earlier versions were “drafts”. But the Court does not accept that explanation. Each lease has apparently been formally executed by Brian and Beverley and Mr McGettigan and apparently witnessed by Mr Buckley: they do not appear to be drafts.

40. [353]

    Moreover, it is implausible that Brian and Beverley would have executed these leases. By giving possession of the Tennyson property to Mr McGettigan the leases contradict the intent of Brian’s 2000 will and Beverley’s 2018 will that benefit the Coulters. And at least some of the leases offer Mr McGettigan lengthy option periods giving him a total term of 15 years in occupation. Once again, Beverley is most unlikely to have wanted to confer such a generous benefit upon Mr McGettigan.

41. [354]

    The leases are also in tension with the 2016 will falsely propounded in Mr McGettigan’s case. The 2016 will purports to give Mr McGettigan the Tennyson property and all of Brian’s and Beverley’s horses in the event of their deaths. The terms of the lease agreements would therefore substantially overlap with those of the 2016 will.

42. [355]

    And the leases bear no relationship to the realities of animal husbandry at the Tennyson property. Mr McGettigan professes no expertise in dealing with horses. Why Brian and Beverley would give him a long-term lease of the Tennyson property to look after their horses is a mystery not explained in Mr McGettigan’s case. On the fourth day of the hearing, 8 April 2021, Mr Brown challenged Mr McGettigan with this conundrum and the reason for the setting up of the Horse Trust:

43. [356]

    Soon afterwards, on 26 April Mr McGettigan forwarded to Mr Mark Field a trust deed for the Horse Trust. This document had not been referred to previously and the Court does not accept it is a genuine document. It is discussed further below.

44. [357]

    The Court rejects Mr McGettigan’s contention that Brian or Beverley owed a debt of $260,000 to Mr McGettigan. There is no objective evidence to support Mr McGettigan’s testimony that Brian McGettigan owed Mr McGettigan a sum of this amount.

45. [358]

    The Witness Mr John Buckley. As outlined above, several of the documents that Mr McGettigan relies upon in the equity proceedings were witnessed by his friend, John Buckley. Mr Buckley is 86 years of age. He gave evidence by video link at the trial. None of Mr Buckley’s evidence can be accepted. His most frequent answer to questions was “I don’t remember”. He disowned or could not confirm almost every point of his affidavits. He could give no account of witnessing any of the documents he purported to witness in the proceedings. No support can be placed on anything Mr Buckley said. Mr Buckley appeared to be quite seriously cognitively impaired. He did not readily comprehend the questions put to him by video-link and not because of any difficulties with the link. In the end the Court is not confident Mr Buckley had enough cognitive capacity to give evidence within Evidence Act, s 13.

46. [359]

    Examples of Mr Buckley’s difficulties were abundant. A few examples will suffice. During cross-examination, Mr Buckley was unable to recall for how long he had been a dairy farmer. When asked: “do you have some sort of illness regarding your memory?” Mr Buckley responded: “I have two kids”. While Mr Buckley denied suffering from Parkinson’s or any kind of illness which would make him tremor, he would later tell the Court he has a “bit of a shake”. Mr Buckley gave non-verbal responses on several occasions, including a question as to whether he recalled swearing any affidavits in these proceedings, and whether he witnessed a will of Brian’s. The probable explanation for these non-verbal responses was Mr Buckley’s lack of comprehension of the questions.

47. [360]

    Mr Mark Field’s evidence, which the Court accepts, supports the same conclusion. In an affidavit of Mr Mark Field sworn 29 July 2020, he deposes to having had a telephone conversation with Mr Buckley prior to the hearing. According to Mr Mark Field’s file note dated 20 July 2020, Mr Mark Field called Mr Buckley and asked whether he had sworn any documents in these proceedings. To this, Mr Buckley responded that he had not. By then though Mr Buckley had reported to swear three affidavits dated 26 July 2019, 24 September 2019, and 9 June 2020.

48. [361]

    Ms Melanie Holt’s Evidence. Ms Holt’s expert evidence, which the Court wholly accepts, supports the Coulters’ case that the documents Mr McGettigan propounds in the equity proceedings are not the genuine documents that they purport to be.

49. [362]

    As to Mr Buckley’s signatures, she stated that: (i) the writer of the signatures purporting to be from Mr Buckley on the agreements identified above as bearing his signature were from the same author who was not Mr Buckley; and (ii) the signatures purporting to be from Mr Buckley on those documents did not display the effects of a tremor consistent with a person displaying signs of degenerative neurological disease which affects motor control.

50. [363]

    Ms Holt also gave her opinion about the alleged signatures of Brian and Beverley where they appear on the documents in the equity proceedings. She said that the various signatures of each of Brian and Beverley displayed a low level of pictorial similarity, which would be a marker of authenticity. Ms Holt ultimately concluded that there was very strong support for the hypothesis that someone other than Brian and Beverley were the author of their signatures on documents in the equity proceedings.

51. [364]

    Deed of Trust for the Horse Trust. As earlier indicated, on the final day of the hearing, a deed of trust for the Horse Trust dated 17 July 2016 emerged. This had not previously been included in evidence before the Court. When asked why this deed had not previously been in evidence, Mr McGettigan obfuscated, saying it “didn’t occur” to him to put it before the Court. He claimed he had already sent a hardcopy to Mr Mark Field in the mail in late 2019 but did not have any proof of this. The following exchange then occurred between Mr Brown and Mr McGettigan:

52. [365]

    On 2 February 2021, Mr McGettigan filed a Statement of Claim in the name of Christmas Lodge Horse Welfare Trust (Proceedings No. 2021/30066). Here he sought the following relief:

53. [366]

    Prior to February this year there was no objective evidence supporting the existence of Christmas Lodge Horse Welfare Trust. It is probable that Mr McGettigan created the Horse Trust documents for tactical reasons to advance his case in these proceedings.

54. [367]

    A Notice of Intention to Appeal. Mr McGettigan was responsible for one other strange invention in these proceedings, which became Exhibit 11. In December 2020, Mr McGettigan sent an email to Mr Mark Field enclosing a copy of a Notice of Intention to Appeal against certain orders made by Lindsay J on 20 August 2020. The Notice of Intention to Appeal sent in December 2020 already had the seal of the Supreme Court on it. But it appears beyond question that Mr McGettigan’s Summons Seeking Leave to Appeal was only e-filed with the Court of Appeal on 8 February 2021. So the question arises how the Court’s seal could have appeared upon a document that had not yet been filed.

55. [368]

    On the fourth day of the hearing, Mr McGettigan was cross-examined about this matter. The following exchange occurred:

56. [369]

    Mr McGettigan was then issued a warning by the Court pursuant to Evidence Act, s 128. A certificate covering all the evidence he gave in cross-examination in these proceedings was later issued to him by the Court on 15 June 2021. After the Court compelled Mr McGettigan to continue answering Mr Brown’s questions on this topic, he continued:

57. [370]

    Mr McGettigan has not explained how the seal came to be on Exhibit 11 before it was filed. It is probable that he somehow improperly placed it on the document before it was sent to Mr Mark Field. Whilst this does not directly bear upon any issue in the proceedings it was further damaging to Mr McGettigan’s credit.

58. [371]

    Relief in the equity proceedings. The Court will dismiss Mr McGettigan’s claims in his Amended Statement of Claim in the equity proceedings. There is no basis for the declaratory relief (a) to (f) relating to any of the documents he propounds. Nor is there any basis for any of the consequential relief (h) and (i) that he claims. Costs should follow the event.

59. [372]

    Early in the hearing the Court put the parties on notice that, if substantiated, the allegations of forgery raised by both sides may be sufficiently serious to enliven Crimes Act 1900, s 253. The parties were warned of the potentially serious consequences of adducing evidence in these proceedings. Mr McGettigan was cautioned that it may not be possible for the Court to grant him a certificate under Evidence Act 1995, s 128 in respect of his evidence in chief: see Song v Ying (2010) 79 NSWLR 442; (2010) 273 ALR 213; [2010] NSWCA 237.

60. [373]

    Section 253 of the Crimes Act 1900 stipulates that:

61. [374]

    Crimes Act 1900, Pt 5 Div 3 ‘Offences Related to Forgery’ provides for other related offences that include using a false document (without making it); possessing a false document; and making or possessing equipment for the purpose of making false documents: see Crimes Act 1900, ss 254-256. The Court’s findings raise the possibility that Mr McGettigan’s conduct may contravene some of these provisions with respect to the creation and use of the 2016 will, the documents in the equity proceedings and an apparently forged Supreme Court seal dated 17 September 2020 appears on a document that was not filed with this Court until 8 February 2021.

62. [375]

    In these proceedings this Court does not have the task of determining whether Mr McGettigan’s conduct constituted an offence under ss 253, 254, 255, 256 or any other provision of the Crimes Act 1900. Elements of criminal intent have not been examined in these reasons. But the Court cannot condone contraventions of Australian law. Whether offences have indeed occurred and whether further action is required is for others to investigate. The Court will therefore refer these reasons to the New South Wales Attorney-General for his consideration as to whether any further action should be taken against any person under Crimes Act 1900 arising out of the Court’s findings. The same conduct may also constitute a contempt of Court. The Court will also refer these reasons to the Prothonotary for her to consider whether any further action should be taken against Mr McGettigan for contempt of Court.

63. [376]

    The Coulters have been wholly successful in these proceedings. Mr McGettigan has failed to secure any relief on his Cross-Claim in the probate proceedings or on his Amended Statement of Claim in the equity proceedings. His various claims will be dismissed with costs.

64. [377]

    But the Court has found that Mr McGettigan manufactured numerous false documents including four versions of the 2016 will and at least three other documents in the equity proceedings. And following upon the Court’s findings that there is no reliable evidence supporting the existence of Mr Cai Biad or Ms Cecilia Zhan, it is also probable that Mr McGettigan created false affidavits of both these witnesses. Mr McGettigan’s conduct in creating these many false documents raises the possibility that the Coulters may wish to apply for a special cost order, such as an order for indemnity costs against Mr McGettigan. The Court will make directions for that purpose.

65. [378]

    As the administrators of Beverley’s estate, the Coulters may wish to seek payment out to them of the funds presently in Court. Liberty to apply will be granted for that purpose and in relation to the implementation of these orders.

66. [379]

    Finally, the Court has not dealt with the proceedings Mr McGettigan has filed this year, proceedings 2021/00030066 and 2021/0030045 which were not heard together with these proceedings as it was likely that their joinder would have occasioned an adjournment to these proceedings. Both the 2021 proceedings will be remitted to the Equity Registrar. But a party to these proceedings may wish to argue that the Court’s findings in these proceedings create issue estoppels in the 2021 proceedings. When any final argument about costs take place, the Court will hear submissions about what further directions should be made in these 2021 proceedings before they are remitted to the Equity Registrar.

67. [380]

    Accordingly, the Court makes the following orders and directions:

    1. (1)

       Dismiss the Amended Statement of Cross-Claim filed on 17 April 2019;

    2. (2)

       Dismiss the Amended Statement of Claim filed on 17 April 2020;

    3. (3)

       Grant letters of administration with the will annexed in solemn form to the first and second plaintiffs in the probate proceedings (2018/174649), namely Glen Patrick Coulter and Rhonda Anne Coulter, of the will of the late Brian Bernard McGettigan dated 19 January 2000 which is Exhibit MFI–1 in these proceedings;

    4. (4)

       Remit the proceedings to the Registrar in Probate to complete the grant of letters of administration;

    5. (5)

       The Court orders that the defendant pay the plaintiff’s costs of these proceedings;

    6. (6)

       Any party seeking a special costs order is to do so by motion filed by Friday, 17 September 2021 and made returnable before the Court at 9 am on Friday, 22 October 2021;

    7. (7)

       Any motion filed pursuant to Order (6) shall be accompanied by all affidavit evidence and submissions in support of the motion; and any evidence and submissions in reply by the respondent to the motion shall be filed by Friday, 15 October 2021;

    8. (8)

       The Court notes that it will order that proceedings 2021/00030066 and 2021/0030045 be remitted to the Equity Registrar after the Court hears submissions about what directions should be made in those proceedings considering the Court’s findings in these proceedings;

    9. (9)

       List the proceedings for further directions and any argument about costs at 9am on Friday, 22 October 2021; and

    10. (10)

        Grant liberty to apply.