Gary Alan Wright v Kerri Lyn Wright as Executor of the Estate of Leslie Richard Wright

The plaintiff Gary Alan Wright (“Gary”) is the son of the late Leslie Richard Wright (“Leslie”). Leslie died on 24 February 2014, leaving a will dated 13 August 2013 of which probate was granted to the defendant on 22 May 2014. The defendant Kerri Lyn Wright (“Kerri”) is the daughter of Leslie and under the will she inherited his whole estate.

The estate has a net value of approximately $523,000, excluding legal costs and an amount of $50,000 which Kerri has agreed to pay her brother Steven Leslie Wright (“Steven”) who had brought a claim under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”) against Leslie’s estate.

Gary, for whom Mr Dickie of Counsel appears, claims that he is an eligible person and should receive a legacy pursuant to s 59 and 60 of the Act. The defendant, for whom Ms Pringle of Counsel appears, resists that claim.

There are a number of matters which are not in dispute:

Gary said in his affidavit that he resides in his car but at the hearing in cross examination he said he was now renting a house. No details of the rental property or rental amounts were given by him. Gary has provided no evidence of his medical bills. Gary stated that his son resides with him. There is no evidence as to whether his son works or not.

Gary has had training as a panel beater and has repaired trucks and other motor vehicles but it seems that he has not been employed since 1996.

Paragraph 8 of Leslie’s 2013 statement deals with Gary as follows:

Paragraph 9 of the 2013 statement deals with Kerri in the following terms:

I did not understand the plaintiff to challenge the accuracy of the assertions of fact concerning Kerri that the 2013 statement contains. He does, however, challenge the assertions of fact made concerning himself.

Gary has been convicted and incarcerated for various offences including theft, sexual assault and driving whilst disqualified (see T16.40). He has also been the subject of Apprehended Violence Orders (“AVO”) taken out by his former de facto partner. He is well known to Police as is revealed by Exh 1 which contains reports of a number of complaints made against him:

There is also reference to Gary having a history of violence including stalking and intimidation (p 6) and damaging and destroying property (p 7).

In relation to [10](a) Gary admitted that he had hit the nurse and a security guard: T33.45- T34.4 blaming it on medications he was given. In relation to [10](b) Garry did not recall this: T34.25. In relation to [10](f)(v) he denied that he had said what had been alleged. In a number of instances Gary asserted that he could not remember that the events recorded occurred: T33.44. In some instances he admitted that he had made calls but said it was because he wanted Police to investigate: T30.44. He said he could not recall having been warned by Police about nuisance and harassment: T33.30- 34.

In January 2004 Gary notified the Police that Leslie kept guns in his house and that Leslie was, in effect, a ‘hit man’. The Police confronted Leslie with the allegations and Leslie admitted that he had once had a rifle but said that he no longer had it. Leslie gave them permission to search his house for guns and the Police declined to do so. Gary presented no evidence to support his allegations against his father and he admitted that he had told Police that Leslie had a gun but could not remember anything else: T29.26.

On 7 December 2014 Gary sent an SMS to Steven in which he stated that he wanted to “get Kerri and Mark today” but they were not home and he would “blind them both so nan doesn’t have to see the deception in their filthy eyes” (with some typographical and spelling errors removed). This evidence was not challenged by Gary.

On 10 December 2014, according to the Police record Exh 1 p 4, Gary phoned Kerri and left the following message on her answering machine:

Gary did not dispute that he left that message but said:

Gary in a letter of 11 August 2014 to Kerri’s solicitor (see annexure B to Kerri’s affidavit of 19 June 2015) wrote:

Lynne recounts that Gary and his de facto spouse moved into her cousin Glenn’s home and that Gary beat Glenn with the consequence that Gary had to be hospitalised. Lynne deposes to having received a phone call from Gary in which he said:

Lynne gave evidence that Gary threatened her that he would firebomb her house (see paragraph 5(e) of Lynne’s affidavit). No suggestion was made that Lynne is not a truthful witness. I accept her evidence.

Gary has recently been charged with sending dangerous goods and a threatening letter to the owners of the M5 Motorway whom he regards as extortionists because they have removed people’s rights to pay a toll on the spot. He has not as yet been required to plead to the charges: T37.34.

Ms Pringle submitted, and Mr Dickie did not dispute, that Exh 1 is a business record of the NSW Police. Because Gary admitted a number of the matters which are reported and because others are Police records of what Gary said to Police officers I do not think it is necessary to determine whether on the balance of probabilities all of the complaints made against him are made out. There is sufficient evidence to establish that Leslie had a view of Gary’s character and conduct that was a rational and reasonable view and not one invented for the purposes of denying him the benefit of a provision.

There are a number of medical reports annexed to Gary’s affidavit of 19 January 2015:

It will be observed that the latest report is that of Dr Pickering of 23 November 2009. The reports appears to be medico-legal reports that appear to have been obtained for the purpose of sentencing. There is nothing to indicate that since 2009 Gary has had treatment or medication of any kind. Much of what is recorded in the reports is a summary of what Gary told the doctors including the fact that Gary told Dr Whetton that he had suffered epilepsy “for a few years”. Dr Whetton did indicate that he suspected Gary has a long term history of Attention Deficit Disorder and “[c]ertainly his personality has been very unstable and impulsive” (p 2), a suspicion which Dr Whetton later thought was credible given the benefit of medication (GAW7). Dr Pickering expressed the view that Gary had ADHD “as his principal treatable problem” and a suspicion that he has “Borderline Personality Disorder”. Dr Pickering did note that

There was the following exchange between Gary and Ms Pringle at T13.5- 10:

In the report Gary relayed a history in relation to his childhood, the details of which he did not reiterate in his affidavit. On the topic of his father he said in his affidavit:

In his second affidavit dated 10 August 2015 Gary said that he had a volatile relationship with Leslie “which arose because of his mistreatment of me as a child”. He denied that he had threatened to cut Kerri’s throat. In admitting that he had a criminal history of which his father was aware he says that his father: “actively encouraged me in some of that activity”. No details were provided of that encouragement or the activity, other than the petrol incident when he was a boy. He asserts that he had an affection for his father. In paragraph 7 Gary asserts that Kerri was present when he and Steven “received severe physical punishment from the deceased particularly during our numerous school holiday visits” and that she was present on one occasion when he was chained to a caravan in the middle of the caravan park.

Kerri asserts that she and Gary had a very close relationship in their early years and as young adults and Gary did not dispute this. She says that Gary told her about everything he did including his criminal activities and she asserts that Gary never told her that he was mistreated by any person including Leslie.

Gary was with Lynne from age 6 to 19. Lynne said that she had never seen Gary beaten or abused by Leslie or anyone else and that Gary had never complained to her (see paragraph 6, 7 and 8 of Lynne’s affidavit). She also said that the conduct ascribed to Leslie in relation to petrol was completely out of character according to her knowledge of Leslie (see paragraph 7 of Lynne’s affidavit). Gary, she acknowledges, had told the Children’s Court Magistrate that “he had a bad childhood” but she understood that was a tactic to reduce the sentence when he was charged with “some offence”. She found the claims made by Gary to the doctors as shocking, defamatory and disgusting. Interestingly Gary had told Dr Pickering that he was adopted at 5 years of age (see page 1 of GAW8) when in fact he was adopted shortly after birth (see paragraph 10 of Lynne’s affidavit). Lynne says that in 1981 she moved to the country because Gary was “regularly getting into trouble and attracting attention from the Police” and was associating with criminals in the neighbourhood. Later when Gary was sent to gaol she visited him there.

Exhibit 7 is a Department of Corrective Services history of Gary from 6 February 2002 to 15 May 2006. There is noted a claim by Gary that he suffered from “chronic amnesia because of epilepsy”. There is also a note on page 3 concerning Gary that he:

That Gary does not accept responsibility for his behaviour is evidenced by his assertion that he hit the nurse and security guard because of the medications, that although he was the person of interest in connection with conduct leading to an AVO in respect of his former de facto he was calling Police because of concerns about what the de facto was doing and that when he made threats of a vicious nature against persons including Kerri he was responding to their wrongdoing hoping the Police would investigate.

Gary is a daily user of cannabis and although he sought to suggest that the use was medicinal there is no expert evidence to support that assertion and I am unable to accept his contention

Gary was a difficult youth who was expelled from school for assaulting a teacher. On the material that is before the Court he has for many years exhibited high levels of aggression particularly to, but not limited to, persons in authority. He appears to be a volatile personality who has not adjusted well to adult life, and his relationship with his former de facto partner appears from Exhibit 1 to have been disastrous.

Gary was clearly emotionally unsettled by reason of learning of the fact of his adoption. He seemed to blame Leslie and Lynne for having adopted him.

In my view Gary is not a reliable witness:

There are claims made by Gary concerning Leslie (except that Leslie once had a firearm) that are without corroboration from any other source.

There is no evidence concerning Gary’s son other than that Gary receives Centrelink benefits. There is no evidence that Gary is unable to work although there was no suggestion made that he has been working.

I am satisfied that there has been no relationship between Leslie and Gary for over 20 years. Leslie noted in the 2013 statement that he had not seen Gary in over approximately 13 years- Gary gave evidence that he saw Leslie on one occasion in 2011 when he, in the company of Steven, went to Leslie’s workshop which is not inconsistent with the absence of any relationship. Whilst I have difficulty in accepting Gary’s uncorroborated evidence on any topic, even accepting that he did see Leslie on one occasion, on Gary’s own account there was no attempt on that occasion to achieve a reconciliation on the part of either Gary or Leslie

I find that Leslie’s belief that Gary was “on drugs” was accurate.

I find that Gary caused issues for Leslie (and Lynne) and threatened him and Lynne.

Leslie expressed the view that he did not want Gary to benefit from any part of his estate and in respect of his reasons I find that Leslie’s belief that Gary has chosen a life of drugs and theft was well founded.

Leslie’s concern that any money which he might give to Gary would not be respected and would be squandered was based in part on the fact that Gary had received money from his cousin Glenn’s estate and had not used it to pay back debt. Leslie’s belief that Gary received $200,000 was erroneous as Gary had actually received $127,000.

Gary says that he used the $127,000 to buy a car (he did not say that the car he now owns is the car he bought out of Glenn’s estate) and otherwise for living expenses (see T41.1). In his affidavit he said he also used it to support his ex partner and their children (see para 3(vi) of his 10 August affidavit). No bank accounts were provided by Gary and there is no corroboration of his assertion as to his use of the money. He certainly has nothing to show for it now and he does not say that he paid back any of the debts which he accumulated and which he wanted to avoid paying when he encouraged Glenn to leave the property owned by Glenn to Gary’s de facto rather than to him: see T22.37- 23.17. Whilst I think that it is possible that Gary spent all of the money on normal living expenses and support paid to his de facto I am not persuaded, in the absence of some corroborative evidence, that he did. I note that Mr Dickie in seeking an order for provision accepted that it would be appropriate for any award to be “managed by the public trustee for his benefit”: T60.47, which rather confirms Leslie’s assessment that Gary would not act wisely with any bequest.

S 60 of the Act requires me to have regard to a number of matters in deciding whether the Court should make a family provision order. The Court must have regard to the position as at the date of the hearing not as at the death of the deceased or the date of the will.

Dealing with the matters specified in s 60(2)(a)- (p):

The question of the two stage approach to provisions out of the estate has been much debated and restated (see [29] to [41] of Burke v Burke [2014] NSWSC 1015 and [17] to [21] and [23] of Burke v Burke [2015] NSWCA 195) but neither counsel in these proceedings submitted the difference in approach between the majority in Andrew v Andrew [2012] NSWCA 308 and the Court in Keep v Bourke [2012] NSWCA 64 or Chapple v Wilcox [2014] NSWCA 392 was of any significance here.

My attention was drawn to Grover v NSW Trustee & Guardian [2015] NSWSC 1048 at [143]- [181] in which the general approach to the legislation is outlined by Hallen J and a detailed summary of previous cases on ss 59 and 60 and its analogues is found.

The Court of Appeal per Ward JA in Burke said:

There was no disagreement between Counsel as to the principles which the Court is required to proceed upon in determining the case. There was no provision made for Gary and he, at 50 years of age, has no significant assets and draws a pension. He is a person who as a son of Leslie might, in other circumstances, be expected to be an appropriate recipient of a significant benefit from the estate.

The real dispute between the parties is whether the testator’s decision not to bestow any legacy or bequest upon Gary and his reasons for that decision should be respected, or whether Gary’s position as a son of Leslie and his needs for assistance outweigh the other considerations.

That a testator has considered whether a child should be a beneficiary and decided that the child should not is an important but not conclusive matter.

I proceed on the basis that Gary has no assets and that if a provision of the magnitude proposed by Mr Dickie (ie $100,000) was made Kerri’s position and lifestyle would not be significantly affected, but I regard the following matters as important:

Mr Dickie pointed out, in an admirably concise form, that Gary’s conduct could be explained by his medical condition and his limited cognition could be determined by my observation of him in the witness box. I think that a testator might be willing to forgive a son or a daughter for conduct that would be intolerable were it not for significant mental problems but leaving aside the absence of any medical evidence to support the proposition that his conduct can be ascribed to his condition I am not persuaded that the approach to be taken to the testator’s testamentary decision making should be measured by a standard of conduct that borders on the saintly. I think that when a son threatens to kill his father (and his sister) the very natural reaction would be to exclude that person from his bounty whatever the reason for those threats- even more so when contact has long since ceased. The testator’s wish to exclude his son was a very natural response to the son’s behaviour particularly having regard to his threats and menacing conduct exhibited before the testator’s death and which behaviour has continued in relation to the testator’s family after his death. This is not a case only of estrangement but open hostility to the testator and his daughter. There is every reason to believe that Leslie was fully aware of Gary’s straitened circumstances, in forming the view that Gary’s financial position did not provide a reason to overlook the estrangement and hostility.

In my view Leslie was entitled, notwithstanding the fact that Gary was his son, to regard him as a person undeserving of any benefit from his estate whatever his financial circumstances at the time of his application. Having regard to the approach required by Court of Appeal authorities referred to in [47] above and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [13]- [25] per Gleeson CJ and Callinan and Heydon JJ at [113]- [121], Dolman v Parker [2005] NSWCA 361 and Allsop P in Andrew at [16] and [95]- [97], I do not think that members of the community would regard Leslie’s decision to exclude Gary as not right or as inappropriate.

I conclude that no provision should be made out of the estate of the Late Leslie Wright in favour of the plaintiff.

The plaintiff should pay the defendant’s costs.