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From The Thorn Birds to thorny will dispute: The Estate of Colleen McCullough

When Colleen McCullough died, she left a thorny will dispute, and the story behind it is the equal of any plot-line found in her best-selling novel The Thorn Birds, published in 1977.

Litigation ensued, culminating in the recent decision: The Estate of Colleen McCullough [2018] NSWSC 1126 (20 July 2018) (Justice Rein), Supreme Court of New South Wales.

Adopting the form of a novel, this analysis comprises six chapters.

Chapter One – Who stands to inherit the estate of the late Colleen McCullough?

Colleen’s estate was estimated at $2.1 million.

The contest was between two beneficiaries. It came down to which of two “wills” was the last will and testament of Dr Colleen McCullough:

  • Was it the Oklahoma Will made on 12 July, 2014, by which she bequeathed her entire estate to the University of Oklahoma Foundation Inc.? or
  • as it the Ric Robinson Will made on 24 October, 2014, by which she bequeathed her entire estate to her husband, Ric Robinson? If valid, it would prevail over the Oklahoma Will because it was later in time.

Chapter Two – “The Oklahoma Will”

Colleen and Ric were married in 1984 on Norfolk Island. Ric had two children from a previous marriage. Colleen had no offspring and no other living relatives.

They lived together on Norfolk Island until 2005, when Colleen left the island to be treated in Sydney for macular degeneration. Ric visited her regularly.

Before she left the island in 2005, Colleen and Ric made wills, in similar terms, leaving their estate to each other. The University of Oklahoma was a part beneficiary of Colleen’s will, if Ric predeceased her. Colleen had received an honorary doctorate from the University, and had lectured there, which explains this provision.

By 2010, Colleen had returned to Norfolk Island and resumed co-habitation with Ric. By early 2014, the state of their marriage and domestic arrangements had deteriorated. On 24 June 2014, Colleen ordered Ric to move out of their home ‘Out Yenna’, which he did. She contacted her solicitor, Piria Coleman, and instructed her to get a divorce, make a new will, and revoke the power of attorney given in favour of Ric.

Shortly afterwards, Colleen travelled to Sydney for a consultation with her eye specialist. While in Sydney, on 12 July, 2014, Colleen executed the Oklahoma Will by which she bequeathed her estate to the Oklahoma Foundation, and appointed her literary agent, Selwa Anthony, an executor of the will. She also signed a bequest letter in which she stated that she made no provision for Ric in her will because she had made adequate provision for Ric during their marriage.

Colleen returned to Norfolk Island on 16 July, 2014. She asked Ric to return to ‘Out Yenna’ to care for her, which he did the next day. Colleen’s health was deteriorating: she suffered from diabetes, osteoporosis, poor eyesight, renal failure and she was unable to walk or get out of bed without assistance. She needed a wheelchair. She had a paid carer who worked 9:00am to 5:00pm weekdays. Ric was her carer outside of these hours.

Chapter Three – A new will?

In October 2014, Colleen decided that Ric deserved to be reinstated into her will. She instructed her solicitor.

On 24 October 2014, Ms Coleman attended at ‘Out Yenna’ with the new dispositive page (in favour of Ric), and the other pages of the Oklahoma Will. Colleen signed the new dispositive page (in favour of Ric) which was substituted for the previous dispositive page (in favour of the Oklahoma Foundation). The remainder of the Oklahoma Will remained unchanged.

The ‘Ric Robinson Will’ provided that Ric would inherit the entire estate, if he survived Colleen.

In January 2015, there were discussions for the preparation of ‘mirror’ wills (i.e. mutual wills), which did not progress far enough to be treated as a ‘codicil’ to the Ric Robinson Will.

On 17 January, Ric took Colleen to hospital, where she died on 29 January 2015, aged 77.

Chapter Four - The judge’s findings

Justice Rein said: “It will be apparent … that this is a most unusual case … there is not only a significant divergence of accounts … but … many contradictions … If the track of the truth in this matter is to be found, it is narrow and poorly lit.”

The case for the Oklahoma Will was supported principally by Selwa Anthony and by Piria Coleman, with two carers also giving evidence. The Oklahoma Foundation funded the case.

The case for the Ric Robinson Will was supported principally by Ric, with the two witnesses to the will and a medical practitioner also giving evidence.

The judge’s findings were confined to the validity of the Ric Robinson Will and the possible ‘codicil’ (in January 2015). The findings were:

  • The ‘Ric Robinson Will’ was an anomaly because it looked like the ‘Oklahoma Will’ except for the dispositive page. However, Ms Coleman thought it was a valid will at the time, because this is how she described it in her invoice and covering letter.
  • The ‘Ric Robinson Will’ embodied the testamentary intentions of Colleen. It was signed, although ‘with a weak hand’.
  • Colleen’s health was not so poor as to affect her mental capacity or her ability to make a will. There was no delusion, mental illness or incompetence.
  • The actions were not irrational, obtained by undue influence or coercion. The Court is not concerned about the reasons why Colleen reinstated Ric as sole beneficiary.

Therefore, Justice Rein concluded that the Ric Robinson Will was the last will and testament of Colleen.

Chapter Five – Who pays the legal costs?

The usual rule in probate litigation is that legal costs “follow the event”: i.e. the successful party recovers its legal costs from the unsuccessful party.

But in this case, an exception applied because an investigation into the documents was required. The investigation showed that:

  1. Ms Coleman failed to prepare a fresh will in the usual fashion – instead she substituted a new page for an old page; and
  2. Ms Coleman propounded a version of events in which she sought to justify her disassembling of the Oklahoma Will, producing a new page to Ric which showed he was to be the beneficiary (she said, to “protect” Colleen), and then reassembling the Oklahoma Will and arguing it was the true will, without instructions from Colleen.

And so, each party was ordered to pay their own legal costs. Footnote: The legal costs for the hearing, which lasted 8 days, are said to have been $400,000 for each party.

Chapter Six – Did financial difficulties cause the June 2014 separation?

Colleen had long complained about Ric’s expenditure, which appears to have been the primary reason why she asked Ric to move out in June 2014. This was the reason she gave in her bequest letter.

True it was that Ric had been supported by Colleen throughout their 30 year marriage, he having no income of his own. Although her royalties were several hundred thousand dollars per year, Colleen received just over half - 30% of her income was paid in withholding tax to the U.S. and British Governments; and 15% of her income was paid to her agents.

Colleen’s medical expenses would have eaten into what income she received, giving her the impression that her expenditure was out of control. Coupled with her marital discord, it was a short step for her to ask Ric to move out and disinherit him by signing the Oklahoma Will.

Epilogue – Life is stranger than fiction

In one of the more famous scenes in The Thorn Birds Mary Carson tells priest Ralph de Bricassart that she has made a second will that would “change their lives forever”. That ‘will’ would enhance his career prospects because in it she left all her money to the church.

Arguably, Colleen McCullough’s own ‘second will’ saga is as intriguing.

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