The Notorious Executor

David Rofe was a prominent NSW barrister, former mayor of Woollahra and a conservative political activist. Admitted to practice as a barrister in 1954, appointed Queen’s Counsel in December 1974, David retired from the Bar following surrender by his then Guardian (Brendan Hull, the first defendant) of his practising certificate in December 2012. In May 2014 following the intervention of another long time friend and fellow barrister, David informed the NSW Bar Association of his intention to retire from the Bar and withdrew his application for restoration of his practising certificate.

The Estate

David died in July 2017, aged 85 years, leaving an estate estimated at approximately $27 million; including twelve known testamentary instruments (comprising 10 wills and two codicils); he had never married and had no children.  During his life, David had relationships, with Gregg Hele and Nick Llewellyn and, in his later years a close personal friendship with Kathy Jackson and her partner, Michael Lawler.

Between 2010-2014 David executed several testamentary instruments, culminating in a will dated 17 December 2014 (”the Will”). The validity of each of those instruments was challenged principally on the basis that David lacked testamentary capacity or knowledge and approval of the nature of his estate. Some instruments but not the Will were said to have been invalid because Nick had procured their execution through undue influence.

Guardianship

Following medical assessments from late 2009 onward, concerns were raised regarding Davids testamentary capacity, including his knowledge and approval of several testamentary instruments signed by him, as he was suffering from vascular dementia, aggravated by a lifetime of heavy alcohol intake. In addition David’s friends became concerned with Nick’s eccentric behaviour and increasingly large demands; this led many of David’s friends to believe that Nick was abusing David’s generosity.

Between 2012-2014, a dispute arose between Micheal Lawler (David’s then enduring attorney) and Nick about management of David’s affairs – which had been the subject of protective orders made by the Guardianship Tribunal an its successor, NCAT’s Guardianship Division in December 2012, May-June 2013 and August 2014. At a hearing in August 2014 (”the hearing”) NCAT made a financial management order in favour of Robert Horder (David’s accountant), and continued a guardianship order in favour of Ruth Coleman (David’s former secretary).

In the lead up to the hearing Ruth (as guardian) engaged Gregg Helle – who had recently completed training as a nurse – to be David’s full-time carer and companion. Under Gregg’s supervision, David’s lifestyle improved; his excessive drinking was curtailed and his medication was adjusted. In her role as guardian, Ruth limited Nick’s access to David and, with the assistance of his close friends organised a family reunion in October 2014.

The Named Executors

The Will named Jonathon Rofe, Kathy Jackson and Robert Horder as executors and trustees and following gifts of family heirlooms, pecuniary legacies to family members and  properties to Gregg and Nick, the deceased’s residuary estate was divided into ten parts and distributed among nine people (including two parts to Gregg and one part to Kathy and Nick)

The Court held that David’s choice of executors and trustees should be respected unless there is a strong reason for not doing so. Accepting that David was acutely aware of Kathy Jackson’s controversial reputation and that she has the support of those with a greater beneficial entitlement to the estate the Court refused to decline her appointment as a co-executor, (and in effect, re-write David’s Will) where there are no grounds to reasonably do so.

  “One does not have to be a saint to serve as an executor”.

The Court found that as a discharged bankrupt, Kathy has no legal impediment to her occupation of the office of executor. A criminal conviction is not, of itself, an impediment to the performance of an executors duties.

The Decision

In finding that David had testamentary capacity when he executed the Will and knew and approved of its contents the Court accepted the submissions from the following:

a psychiatrist who witnessed David executing the Will:

Kathy who accompanied David to his appointment with the psychiatrist – but not the examination;

Gregg who drove David, Kathy and a carer to and from the appointment and who spoke with David about the contents of the Will upon his return home;

Others who had dealings with David in the latter part of 2014.

The Court reserved for further consideration ancillary questions whether Nick has any (and, if so, what) liability for debts owed and the enforceability or otherwise of those debts.

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