McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097

Supreme Court New South Wales

Medium Neutral Citation: McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097 Hearing dates: 1, 5, 6, 7 & 8 April 2021, 7 May 2021 and 16 June 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Equity Before: Slattery J Decision: Probate granted of the deceased's 2000 will. The alleged 2016 will of the deceased found to have been forged by Mr McGettigan. Mr McGettigan's probate proceedings are dismissed. All the alleged inter vivos instruments made between Mr McGettigan and the deceased and other persons are forgeries. Mr McGettigan has established no equitable interest in the assets of the deceased's estate. Mr McGettigan's equity proceedings are dismissed. Mr McGettigan is ordered to pay the defendants' costs of the probate proceedings and the equity proceedings on the ordinary basis. Leave granted to the defendants to seek indemnity costs. Mr McGettigan referred to the Attorney-General for consideration as to whether any further action should be taken against him on account of the findings of forgery. Catchwords: SUCCESSION – Wills, Probate and Administration – validity of wills – Mr McGettigan challenges the validity of a 2000 will created by his brother, the deceased, which gave the deceased's estate to his wife – the deceased's wife dies shortly after the deceased in 2018 – the defendants, the executors and beneficiaries of the deceased's wife, seek probate of the deceased's 2000 will – Mr McGettigan propounds a 2016 will of the deceased, which gave the deceased's estate substantially to Mr McGettigan – the defendants contend that Mr McGettigan forged the 2016 will to prevent the deceased's estate devolving away from the deceased's siblings – whether Mr McGettigan has standing to challenge the deceased's 2000 will – application of the suspicious circumstances rule. EQUITY – Equitable interest in property – Mr McGettigan relies on two groups of instruments to claim an interest in certain real property in his brother's estate – Mr McGettigan claims that he made both groups of instruments with the deceased and his wife and other persons – the first group instruments are three agreements, allegedly made between 1991 and 2016 – the second group of instruments are four leases made in July 2016 – whether Mr McGettigan forged both groups of instruments – if not, whether Mr McGettigan can enforce the instruments against the real property in the estate of the deceased. CIVIL PROCEDURE – application filed by Mr McGettigan after judgment is reserved to tender additional evidence six weeks after the conclusion of evidence – consideration of whether to reopen the case in circumstances where substantially the same evidence was put before the Court at trial – where that evidence was rejected on the basis that it was inadmissible hearsay – application is dismissed with costs – a further application by Mr McGettigan to reopen after judgment is reserved also dismissed with costs. EVIDENCE – Credibility evidence – where both parties allege fraud by the other side – where Mr McGettigan was convicted of historical offences of embezzlement and obtaining a financial advantage by deception. Legislation Cited: Crimes Act 1900, Pt 5 Div 3 ss 253, 254, 255, 256 Criminal Code 1995 (Cth), s 20(1) Evidence Act 1995, ss 13, 97(1)(b), 140(2)(c), 128 Health Records Information Privacy Act 2002 Succession Act 2006, Ch 4, Pt 4.2, ss 107, 111 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Griffiths v Lewis (2013) 11 ASTLR 152 Ken Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 Mekhail v Hana; Makail v Hana [2019] NSWCA 197 Nobarani v Mariconte (2018) 265 CLR 236 Nock v Austin (1918) 25 CLR 519 Poulos v Pellicer [2004] NSWSC 504 Re Culina; Re Culina; Poulos v Pellicer [2004] NSWSC 504 Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 Song v Ying (2010) 79 NSWLR 442 Van Wyk v Albon [2011] VSC 120 Category: Principal judgment Parties: In proceedings 2018/00238970: