Australian Artist Brett Whiteley was a flamboyant and somewhat controversial artist who cultivated a rock star persona, importantly he remains the youngest living artist ever to be bought by the Tate gallery.
Brett died accidentally of a drug overdose in June 1992 with an Estate worth $13 million. Due to his anger toward lawyers following a protracted and bitter divorce settlement he drafted a series of informal Wills that led to expensive litigation in order to clarify and settle his testamentary intentions.
In May 1989, influenced by his acrimonious divorce proceedings, Brett instructed his solicitors to draft a Will he believed would protect his property from his ex-wife. In a later discussion with his sister Brett was disgusted that he had been charged $7000 for this Will, particularly when his sister had made her Will on a form she purchased from a Newsagent.
The January Will
In January 1991 Brett hand wrote a Will leaving various gifts, establishing a travelling scholarship for young artists, and leaving the rest of his Estate to his daughter Arkie.
His Daughter and her boyfriend Christopher Kuhn were present when this was done and it was her recollection that her father had revoked his previous wills with this document. When Arkie asked her father if they should consult lawyers he said
‘No, it’s fine. I’m not going back to any bloody lawyer. No more bloody lawyers. They make a mess of everything.”
As his Daughter was a witness to the Will the Witness-Beneficiary rule would preclude her from inheriting under that Will.
The Kitchen Drawer Will
His daughter’s then boyfriend Christopher Kuhn gave evidence that in April 1991 Brett could not remember where he put the January document so replicated that document in front of Kuhn who then witnessed it. Brett then placed it in an envelope and taped it underneath the fourth drawer in the kitchen cabinet. Kuhn then made a note in an exercise book so he could remember where the Will was kept.
In November 1991 Brett told his accountant he had changed his Will, his accountant, (who was also named as an executor) expressed his concern as to the validity of the handwritten document and asked Brett to arrange for it to be checked by a solicitor. Brett’s reply to this request was
‘I hate solicitors. They’re always ripping me off. If you think I should go I will.
However the Court accepted that following the execution of the Kitchen drawer document Brett’s intentions never changed and that he hadn’t made any other Will or destroyed or revoked the document he had signed.
Following Brett’s death and funeral in June of 1992 Kuhn and Arkie could not find the Will under the fourth drawer in the kitchen but there were remnants of the tape. Over the next few days the studio was thoroughly searched for the Will without success.
Similarly Kuhn and a friend removed about 60 drawings and five or six paintings Brett had secreted in a false wall of the studio to prevent Wendy getting them during their divorce in the late 1980s.There was concern that Brett’s girlfriend Janice might have been told about the hidden paintings, so they were removed to Wendy’s house.
The Court had to decide if the informal Wills were to be accepted by probate. As neither of the January Will or the Kitchen Drawer Will could be found and notwithstanding that Arkie was the main beneficiary of the estate the court found that her evidence and that of Christopher Kuhn was compelling.
Janice’s lawyer (future Australian Prime Minister Malcolm Turnbull) submitted that Brett must have removed and destroyed the Will, as he was uncertain about his intentions – resulting in him dying intestate.
If the Court had ruled Brett died without a will, it then had to decide if Janice had been his de facto wife — a relationship that could have given her a considerable claim on the estate.
However, the Court believed there was overwhelming evidence that from January 1991, Brett’s intentions had remained consistently in favour of his daughter. Similarly there was a strong possibility that someone who had access to the studio could have removed the Will.
The Court held that Brett revoked all previous Wills, with the written document that was taped to the fourth drawer of a kitchen cabinet at the studio, but has not been found. In that will, the bulk of the estate was left to Arkie; Brett’s mother and sister each receive $500,000; the same amount goes to establishing a scholarship for young artists; his old school received a painting, as did Janice.
As the deceased was the cause of these proceedings the Court found that the cost of litigation for all parties was to be paid out of the Estate. Ironically the informal Will mirrored the provisions of a Will that Brett instructed solicitors to draft and was executed in July 1988.
In 1993 Arkie negotiated with the NSW Government for the sale of Brett’s former studio that is now run by the Art Gallery of New South Wales.
In 1999, Brett’s mother Beryl Whiteley made funds available to establish a travelling art scholarship in his memory.
In December 2001 Arkie Whiteley died of cancer following a short illness aged 37. Her mother Wendy inherited the bulk of her daughter $14 million estate.
In the hours before her death, Wendy phoned Arkie’s lawyer, who took instructions and typed up a will on Arkie’s computer. The Will was read to Arkie and executed. The Will appointed her mother Wendy and friend Sarah Ducker as executors.
Her husband, Jim Elliot, who Arkie married two weeks before her death, inherited her Palm Beach house on the condition that he pay Arkie’s cousin $40,000 a year while he owns the house or $400,000 should he sell.
The artworks in her Palm Beach house were left to friends including her previous husband Christopher Kuhn to “be distributed by my executors in their absolute discretion”, raising some concerns among the beneficiaries the type and value of the artwork to be distributed will be decided by to the two executors only.
Wendy received the remainder of Arkie’s estate, including “interest in the copyright in all paintings, sculptures and other artistic works of my late father”.
With the executor’s year approaching and the estate still not settled it was reported that Jim Elliott threatened legal action to have the two executors removed on the grounds that they have failed to act. Probate was granted at the end of November 2002, the estate was valued at $14 million.
In the intervening period Wendy has dedicated herself to being a guardian of Brett and Arkie’s legacy through, amongst other things, managing Brett’s estate and promoting his art and the travelling scholarship named in his honor.