Host: Dr Tamson Pietsch
Senior Producer: Olivia Rosenman
Executive Producer: Emma Lancaster
Supervising Producer: Sarah Mashman
Executive Story Consultant and Script Editor: Belinda Lopez
Sound Engineer and Composition: Output Media
Collaborating UTS academic: Professor Katherine Biber (Faculty of Law, University of Technology Sydney)
Illustrator: Dinalie Dabarera
Digital media: Benjamin Vozzo
Tamson Pietsch: [00:00:00] Welcome to History Lab. I’m your host, Tamson Pietsch, and this season we’re covering histories that intersect with the law. And we’re starting in 1948 in a wheat field in the middle of Canada with our senior producer Olivia Rosenman.
Olivia Rosenman: [00:00:16] It was late one midsummer’s night in June. Irene Fullerton remembers her neighbour, Bessie May Harris, knocking frantically at their family’s front door.
Irene Fullerton (CBC Audio): [00:00:27] Someone said, ‘our neighbour is pinned under a tractor and we need help. He’s still alive’.
Olivia Rosenman: [00:00:35] The man pinned under the tractor was Bessie’s husband, Cecil George Harris. He was a wheat farmer in the Canadian province of Saskatchewan.
Bob Hanney (CBC Audio) : [00:00:44] It was dark and a terrible lightning storm on. And raining by this time…
Olivia Rosenman: [00:00:48] Bob Hanney lived on a farm nearby. He was part of the rescue party that rushed to try and save Cecil.
Bob Hanney (CBC Audio) : [00:00:56] They were big, deep, steel lugs, about four inch lug made like an A or a V. One lug must have stopped his leg from moving so the next lug went through his waist about belt line.
Olivia Rosenman: [00:01:16] In pitch back and pelting rain, they somehow managed to jack up the Case Model C tractor and free Cecil. They got him into a car to take him to the hospital. But the heavy rain had turned the gravel roads to mud, so Hanney had to use his family’s tractor to tow the car to Highway 7 – the main road to medical help. It was after midnight when they finally arrived at the hospital. Cecil was still alive, but in a bad way. He’d been stuck under that tractor for hours. Before he was found in the wheat field that night, Cecil George Harris had done something quite unusual. Something that would etch his name into Canada’s legal history and form a precedent for lawyers around the world.
Tamson Pietsch: [00:01:59] Cecil George Harris used a penknife to scratch 16 words into the fender of his tractor. Those words changed the way courts across the common law world think about what can be accepted as a document and what makes a valid legal will. Helping us to make sense of this is one of our well-loved collaborating historians, Katherine Biber.
Katherine Biber: [00:02:21] One thing I’ve observed is that death money and family together, some kind of special cocktail that unleashes a force that isn’t present in other contexts.
Tamson Pietsch: [00:02:38] Today, the comedy, the tragedy and the surprising drama of wills and how technology is changing succession law – the area of law that deals with what happens to your stuff after you die. Back to our senior producer, Olivia Rosenman.
Geoff Ellwand: [00:02:55] Hello. Hi, Olivia.
Olivia Rosenman: [00:02:56] Geoff, can you hear me?
Geoff Ellwand: [00:02:58] I have to turn something on in here. Hi, Olivia.
Olivia Rosenman: [00:03:01] Can you hear me?
Geoff Ellwand: [00:03:02] Yes, I can.
Olivia Rosenman: [00:03:03] Yes, this is Jeff Ellwand. And thank you so much for coming in.
Geoff Ellwand: [00:03:07] It’s my pleasure because I love this story.
Olivia Rosenman: [00:03:09] He’s a Canadian lawyer and journalist. I spoke to him from the University of Arizona, where he’s an Associate Professor in the School of Journalism.
Geoff Ellwand: [00:03:16] I’ll do my best to avoid any kind of legal jargon stuff. If you if I start getting jargony, just call me up on it.
Geoff Ellwand: [00:03:24] He’s also a bit of an expert in the tractor case.
Geoff Ellwand: [00:03:27] I mean, I just tried to cross every T and dot every I associated with the story.
Olivia Rosenman: [00:03:33] Geoff travelled to Rosetown, where Cecil Harris lived, to research the case. He told me Saskatchewan is what Canadians call a ‘prairie province’. It’s sprawling, sparsely populated and extremely remote. We’re talking fifteen hundred kilometres from Canada’s west coast and almost 3000 from the east. The land is dotted with forests and farms.
Geoff Ellwand: [00:03:55] It’s farming country. Still looks now a lot like it did back in 1948. It’s sort of remote, flat with a great big sky. No shade. Very little water. But it is good for growing primarily wheat. There is basically nothing but crops and usually gravel roads running around here.
Tamson Pietsch: [00:04:23] We better tell the History Lab listeners what Cecil’s 16 words were before they turn us off.
Olivia Rosenman: [00:04:29] All right. Okay. So remember, he’s written them while he’s out there alone, stuck under the tractor before the rescue party arrives. I’ll let Geoff take it from here.
Geoff Ellwand: [00:04:38] It’s only subsequently that people realised that he used a penknife because he was trapped there in the middle of a field. Certainly didn’t have a pen or paper. There were no nails or anything around. So it appears that he used a pocket knife to scrawl a very simple message, ‘in case I die in this mess. I leave all to the wife’. And he signed it.
Tamson Pietsch: [00:05:03] So basically, Cecil Harris wrote a will,.
Olivia Rosenman: [00:05:06] Yes and no. Let’s start with the legal definition of a will from Katherine Biber. In case you don’t remember her from our first season, Katherine’s a legal scholar, historian and criminologist at the University of Technology, Sydney. And she’s the one who told me about Cecil George Harris in the first place. She’s been researching wills and how they’re changing.
Katherine Biber: [00:05:26] Probably the most exemplary form of the legal document is a last will and testament. It’s a heavily rule bound document. It’s actually quite a simple document. But there are some strict formalities that are required before a will can be formal. So the will needs to be written on paper. The will needs to have two witnesses. The will needs to be signed by the testator.
Olivia Rosenman: [00:05:54] The testator is the person who makes the will. So let’s go back to that June night over 70 years ago in Saskatchewan. It was already pretty extraordinary that after getting pinned under his tractor with huge metal lugs severing his legs and abdomen, Cecil Harris had been found alive and rescued. But it’s what happened next that set his name in history.
Geoff Ellwand: [00:06:18] He got to the hospital, doctor looked at him. They put him in a hospital bed. Of course, they took his clothes off and they handed the clothes to the driver of the car who was a friend of Harris’s.
Olivia Rosenman: [00:06:32] But tragically, Harris died the next morning. Around the same time as Harris is drawing his final breaths, two of his neighbours are out laying grasshopper poison in a field close to the scene of the accident.
Geoff Ellwand: [00:06:46] And one of them noticed on that tractor fender this message ‘in case I die in this mess, I leave all to the wife’. So they took the tractor back. They put it in the barn to preserve it. And they went into town to tell the local lawyer what had happened.
Olivia Rosenman: [00:07:03] Now, the guy who’d taken Harris’s clothes from the hospital gets home. And in the pocket of Cecil’s pants, he finds a knife.
Geoff Ellwand: [00:07:10] And he thinks, oh, gee, I wonder what do I do with that? I better give it to the lawyer, because by this time he’d heard that they’d found a will and they’d taken it to the lawyer.
Olivia Rosenman: [00:07:19] He was a man named W.S. Elliot. And according to Geoff Ellwand, this country lawyer did something quite unique.
Geoff Ellwand: [00:07:26] The lawyer did a magnificent job on this. When you think, you know, country lawyer, he didn’t just push this off. He got pictures taken of the tractor because he assumed the court would accept pictures. But the court insisted on the actual will. So that was submitted to the court.
Tamson Pietsch: [00:07:43] Wait the fender of the tractor that had crushed and killed Cecil Harris was submitted to the court as his will?
Olivia Rosenman: [00:07:50] Yes, the piece of the tractor that Cecil had scratched his dying wishes into. It’s a square piece of metal measuring around 33 by 33 centimeters. It’s about the size and weight of one of those nice big dinner plates you might get in a fancy restaurant. But that’s not all the lawyer did.
Geoff Ellwand: [00:08:06] He got the local banker to confirm Cecil George Harrison’s signature.
Olivia Rosenman: [00:08:12] The banker submitted signature cards from the bank’s files as evidence. And Geoff says.
Geoff Ellwand: [00:08:17] He did just a terrific job present the case with he had about 10 witnesses who submitted statements.
Olivia Rosenman: [00:08:25] These included one of Cecil’s former business partners and his wife. There was another problem facing the lawyer, though. He had to prove that even though Cecil hadn’t actually died out there in the wheat field under the tractor, that the words he’d written ‘in case I die in this mess’ still applied. So he got an affidavit from the doctor that said that Cecil died as a result of the injuries he sustained in the accident.
Tamson Pietsch: [00:08:50] So did he say anything about the will when he was in the hospital or you know it at any point before he died?
Olivia Rosenman: [00:08:55] No. Maybe he was too out of it. Or maybe he was just an optimistic kind of guy, like he thought he was going to survive. Either way, Geoff says this didn’t prove to be an issue for the judge. It was generally agreed that Cecil had died in that mess.
Geoff Ellwand: [00:09:10] It just breezed right through court. No problem at all.
Tamson Pietsch: [00:09:14] Let me get this straight. Even though it wasn’t written on paper, even though it wasn’t signed by two witnesses and even though it didn’t follow almost any of the rules, it was deemed to be a will?
Olivia Rosenman: [00:09:26] Yes, it was found by the judge to be a valid informal will. And that’s thanks to a special clause in succession law that allows for a document to function as a will provided it meets certain requirements.
Katherine Biber: [00:09:38] For an informal will to nevertheless be a valid will. It needs to be a document. That document must contain the testator’s testamentary intentions.
Olivia Rosenman: [00:09:49] Testamentary intentions.That’s the legal term for what someone wants to happen to their things after they die. And if you’ve expressed those intentions on a document, even if you haven’t done so exactly the way the law wants you to. Well, the law has to find a way of dealing with that too.
Tamson Pietsch: [00:10:06] What I’m trying to get my head around is how can they really know what Cecil Harris wanted anyway? I mean, especially seeing as he didn’t do what he was supposed to do and see a lawyer and write a formal will.
Katherine Biber: [00:10:18] Yeah, it’s a good question. Tamson. And as it turns out, Cecil Harris is not the only one. Historian Katherine Biber is quite fascinated by these unconventional wills.
Katherine Biber: [00:10:28] There are many wills that lack some or all of those formalities. And also, there are some documents that we are not even sure whether or not they are will. And so a large amount of jurisprudence has turned to the question of what do we do with informal documents? And they may be informal wills or they may be found to be informal documents that are not wills.
Olivia Rosenman: [00:10:52] There are heaps of cases where people have left unusual objects as their will. An egg shell, graffiti on a wall, a soldier’s pay book or a petticoat.
Tamson Pietsch: [00:11:02] So because these people have gone off script and not done what the law wants them to do while they were still alive, the court then has a whole process in which it tries to work out what the person really wanted after they die.
Katherine Biber: [00:11:17] The courts create all these kind of criteria and checklists in order to try and govern their thinking through what is otherwise an incredibly emotional minefield. You can see that these are grieving parties. These are often parties in dispute. These are often people who are left to take care of a mess after a person has died. And the court needs to wade through all of that grief and anger and pain and inconvenience and come up with a technical legal answer.
Olivia Rosenman: [00:11:49] And that’s a big part of what drew Katherine to this in the first place.
Katherine Biber: [00:11:52] Yeah, look, that’s actually one of the surprises that I experienced in doing this research was that at the outset I thought this would be area of law that was heavily governed by legislation. I thought it would be highly technical, extremely dry and probably quite boring. But what I discovered was actually a large body of case law of judges showing enormous humanity and compassion and really trying to understand the lives and tragedies and traumas and experiences of people who probably lived lives very different from judicial officers’ lives.
Olivia Rosenman: [00:12:30] And when you think about all of the issues surrounding a will, it’s an especially messy part of being a human.
Katherine Biber: [00:12:36] I guess one way you know that is when you see how many judges quote Shakespeare. When we think of Shakespeare as a playwright who captures some of the big themes of humanity. And when you can quote Shakespeare in a judgment about an informal will, you know, you’re really drawing together some of the big themes of humanity, death, money, family, jealousy, regret, grief, afterlife. All of these things come together in Shakespearean quotes. And all of these things come together in this area of law.
Judge Christopher Legoe: [00:13:10] Sometimes I felt when I was writing my judgments that these quotations helped me to rationalise the arguments that had been presented.
Olivia Rosenman: [00:13:25] That’s Christopher Legoe, a former judge of the Supreme Court of South Australia. Legoe retired in 1994. He’s now 91 years old.
Judge Christopher Legoe: [00:13:35] And I felt that sometimes poetry, particularly Shakespeare, had a wonderful ability to describe human feelings, human intentions, human understandings and human meanings. And I did quote Shakespeare on more than one occasion, I’m afraid.
Olivia Rosenman: [00:14:03] Judge Legoe is an eminent legal authority on succession law. He also has a bit of a reputation for inserting literary references into his rulings. There was one particularly tricky case Judge Legoe was appointed to rule on. The case of a man called Pantelej Slavinskyj, who was 71 years old when he died in 1984.
Judge Christopher Legoe: [00:14:23] Yes, I did start off my judgment by quoting from Midsummer Night’s Dream. As Snout the Tinker said, quote, ‘This loam, this rough cast and this stone doth show that I am that same wall’ unquote.
Olivia Rosenman: [00:14:44] Pantelej Slavinskyj was born in Ukraine in 1913. He lived most of his life in Adelaide. His case came before Judge Legoe because just before he died, Slivinski had written something in pencil on the wall of his suburban home in Semaphore Park.
Judge Christopher Legoe: [00:14:59] Funny circumstances, and that’s why I resorted to my rather nonjudicial habit of saying at the end when I had looked at the facts. Too strange, but true, for truth is always strange, stranger than fiction.
Olivia Rosenman: [00:15:26] That’s a quote from Don Juan by the poet Lord Byron. So here’s the facts.
Katherine Biber: [00:15:31] Pantelej Slavinskyj was born in what was then the USSR in a region that is now the Ukraine. But at the time of his death in 1984, it was still the USSR. He was an electrician. He hadn’t had a spouse or partner, and he didn’t have any children.
Olivia Rosenman: [00:15:44] Pantelej was the second youngest of six kids, and he was the last of them to die.
Katherine Biber: [00:15:50] Only one of his siblings, his sister Daria, had children. She had four children, but only three of them – the nieces – had survived. And these three nieces, Elena, Neonila and Katerina, with a final members of this whole family.
Olivia Rosenman: [00:16:06] So the only remaining family this guy had was three nieces. On the other side of the world. And it’s possible he’d never even met them. But he did have some lovely neighbours who treated him just like family.
Katherine Biber: [00:16:18] They lived next door for 30 years. They were called Mr and Mrs Skoryk, Nikola and Katarina. For the last six years of his life, they cared for him. She cooked his meals and washed and ironed for him. She had the keys to his house, and she checked on him every night before she went to sleep.
Olivia Rosenman: [00:16:33] A few months before he died, Mr Skoryk went with Slavinskj to see a lawyer about making a will. He said he wanted to leave his estate to his nieces, but he didn’t know their full names and addresses. So the lawyer told him to come back when he could track that info down. But Slavinskj ran out of time. So like many of these cases of informal wills, he was forced to take a more pragmatic approach.
Katherine Biber: [00:16:55] Slavinskj called the Skoryks to his house. He told them he would be going to hospital. He told them that he was writing his will. So he wrote on the wall in pencil in Ukrainian. To all my nieces, USSR
Archival Tape: [00:17:09]
Katherine Biber: [00:17:10] Underneath that he wrote the name and address of one of the nieces on the wall.
Archival Tape: [00:17:13]
Katherine Biber: [00:17:13] He then produced an envelope, and on it was written the name and address of another of his nieces in the USSR, and he stuck that envelope into a crack in the wall.
Tamson Pietsch: [00:17:31] Wait what? Into the wall of the actual house? I mean, why?
Olivia Rosenman: [00:17:32] No one knows. Maybe he was so unwell that he just couldn’t get out of bed to get a second envelope. After all, he was admitted to hospital the next day and died around 10 days later. Well, maybe he just fancied the romance of secreting something in a wall. Whatever the reason the ‘why’ wasn’t so important to Judge Legoe when he made his ruling on the case.
Judge Christopher Legoe: [00:17:53] The real question was, were the words on the wall sufficient? And they were very brief. Were they sufficient to constitute a testamentary intention, which is what had to be proved beyond reasonable doubt.
Olivia Rosenman: [00:18:12] I asked Legoe why he didn’t insist the wall be brought into the court like the tractor fender back in 1948 in Saskatchewan.
Judge Christopher Legoe: [00:18:20] Well, because it was somewhat impractical way and it might destroy the wording, whereas the photograph would, of course, give our complete wording and would be undestroyed.
Olivia Rosenman: [00:18:36] Perhaps if I can ask a more philosophical question, why is it so important that the wishes of someone after they’ve passed away are seen to in an orderly way by the law? After all, you could argue that after somebody has passed away, they don’t know what happens to their things anyway.
Judge Christopher Legoe: [00:18:55] Because it is fundamental to our economy. Really, when you come to think of it – where the estates go to. Look at all the charities that benefit from probate, look at the businesses that benefit.
Katherine Biber: [00:19:14] By continuing to distribute property amongst private people, private individuals, the wheels of capitalism keep turning. So the probate division of any court is actually ensuring that private property continues to be in private hands.
Olivia Rosenman: [00:19:31] Of course, there’s another thing that might explain why this is such an important area of law.
Judge Christopher Legoe: [00:19:36] It happens to be the most profitable part of the Supreme Court because the fees which are charged for probate are often done on a valuation basis, I think. And Supreme Court doesn’t run a profit, but the probate division does.
Olivia Rosenman: [00:19:54] The probate division in Canberra is made up of one office and one cubicle at the ACT Supreme Court.
Grant Keneally: [00:20:01] My name is Grant Keneally. I’m the deputy registrar at the A.C.T. Supreme Court. One of my functions as deputy registrar is to issue probate or deal with probate applications.
Olivia Rosenman: [00:20:13] It’s a team of two.
Maria Bouzas: [00:20:14] My name is Maria Bouzas. I’m a Probate Officer. I generally just process probate documents before they get to Grant.
Olivia Rosenman: [00:20:25] One wall of Grant’s office is filled with photos of his family. The other is filled with files and two pigeonholes labeled probate in, probate out.
Grant Keneally: [00:20:31] And in fact, just while I’ve got you there. This application was made. So that’s the will.
Olivia Rosenman: [00:20:39] Grant flicked through the papers in the file and stopped at the death certificate.
Grant Keneally: [00:20:43] Nancy, here has died. The people that then signed in the margin of the will are the people seeking probate and the witness. That’s them saying to us,’this is the last will of that person’.
Olivia Rosenman: [00:20:54] And so these are the daughters?
Grant Keneally: [00:20:55] Yes. Two daughters.
Olivia Rosenman: [00:20:56] I was starting to feel a little bit uncomfortable. I was imagining everything that was probably happening around Nancy’s death. An empty house, planning for a funeral, her two grieving daughters. It felt like these documents didn’t really do the situation justice. There was a whole life lived in between the lines of technical legal text. And that’s when Grant came out with this.
Grant Keneally: [00:21:22] Every matter I look at Olivia, I will look at the death certificate to be in some considerable detail. And not just the detail that I’m looking at from a point of view of the grant of probate saying is it a valid application? Looking at the will and saying that this particular lady died at the age of 88 years, you know, she was born in Wagga. I used to love umpiring in Wagga. You know, she’s a dietitian. Well, I wish my mum had been a dietician. Maybe I would have been a bit healthy with my food. Two children aged 55, 51. They’re probably coping with it. Okay. They’re 55, 51. They’re not 12 and 13. You know, often you’ll see that died of, you know, just non-small cell carcinoma of lung cancer at the age of 88. No, we don’t. So at least her husband’s not, you know, suffering as a result of her passing. That’s what I look at when I see the death certificate. I personalise every one, even though you could say, look, it’s a rubber stamping exercise. And people just hear me hitting the stamp when I issue the grant. It’s not, it’s a real personal exercise. Every one of them, because, you know, everyone comes with a back story.
Olivia Rosenman: [00:22:23] And each of these applications, with all of their backstories are physically stored right here, in the courts archive. There’s a record of every will that’s ever been granted probate in the ACT. The very first one belongs to a man named William Hill who died on the 16th of July 1929. Grant and Maria showed me the custom made, leather bound ledger, where the details of his case are inked with fountain pen.
Maria Bouzas: [00:22:52] So this is the first probate that was applied for and granted. So that was William Hill.
Grant Keneally: [00:22:59] He’s a miner with a pitchfork. I think the miner isn’t under 18.
Olivia Rosenman: [00:23:03] And there’s this second man here, John Henry Feather, who was by occupation, a gentleman. Yes. What does that mean? Beautiful cursive writing.
Maria Bouzas: [00:23:15] There was no whiteout back then.
Olivia Rosenman: [00:23:15] Gosh this is an amazing document.
Grant Keneally: [00:23:16] Yeah, I said that too when Maria showed me. I said this is a really, really good book.
Maria Bouzas: [00:23:21] This one was a knight, this man!
Olivia Rosenman: [00:23:22] In the same room, there were five large safes filled with thousands of wills being stored by the court for safekeeping. Grant told me that heaps of those wills were probably out of date. People’s circumstances change. Like if you get married, any former will have is automatically revoked.
Olivia Rosenman: [00:23:42] Forgive me if this seems rude, but is this not a little bit inefficient to me holding on to all these wills that may or may not be…
Maria Bouzas: [00:23:48] We are not allowed to destroy wills.
Olivia Rosenman: [00:23:48] Standing in a room surrounded by paper files. I started thinking about how strange and outdated it seemed to me to write something down on paper and lock it in a safe. Wherever it’s possible, I create and store important information and paperwork digitally. I don’t have a filing cabinet. All my important documents are in password protected online storage. For me that feels so much more secure and more practical as well. And as it turns out, I’m not alone. And so this is something the law has had to contend with in recent years.
Katherine Biber: [00:24:22] In the digital age, what we count as a document has undergone a massive transformation.
Olivia Rosenman: [00:24:29] While lawyers still prefer locked filing cabinets filled with paper, the law is actually quite progressive in the way it defines a document.
Katherine Biber: [00:24:37] A document is defined in modern evidence law in a very broad and inclusive way. It’s also trying to anticipate forms of documentation that haven’t yet come into existence. So it will include things that we might all agree are documents which are things on which there is writing. But it will also include things on which there are marks, figures, symbols, perforations, even if those things require someone who is specialised in interpreting those marks or symbols. And it can also include things like photographs, drawings, diagrams, maps and other representations that are not necessarily textual.
Olivia Rosenman: [00:25:18] And when it comes to what Katherine described earlier as the most exemplary form of the legal document, the last will and testament. It turns out there are many informal will cases involving digital documents. And Katherine was often surprised when she came across them with.
Katherine Biber: [00:25:33] Something that I would regard as quite a casual act, the drafting of a text message, you can leave the entirety of your estate to people who did not expect to receive it. So I’m interested in the power that these actions and these documents can wield and how carefully the courts need to decide if this action intended to have this power or not. And how will we know?
Voice Actor: [00:26:06] Dave, you and Jack Keep are going to have house and superannuation. Put my ashes in the back with Trish. Julie will take her stuff only. She’s okay – going back to her ex again. I’m beaten. A bit of cash behind the TV and a bit in the bank. Cash card pin 3636. MRN 10th of October 2016.My will.Smiley face emoji.
Olivia Rosenman: [00:26:39] Mark Nicol was 54 years old when he died by suicide. His mobile phone was sitting on the workbench in the shed where he was found. When a friend of Mark’s wife was going through his contacts to find people to call – to let them know what had happened – she found this unsent text message addressed to Mark’s brother, David. We had it voiced by an actor. Two applications were made to the court. One from David and his son Jack, submitting that this unsent text message should be treated as Mark’s last will and testament. The other was from Julie, Mark’s wife, submitting that Mark died intestate. That means he died without a will. If there was no will, this would mean Mark’s estate would pass directly to Julie as his next of kin. A key issue in this case was that the text message was left as a draft on Mark’s phone. It was never sent.
Katherine Biber: [00:27:31] So his wife, Julie, whilst she accepted that the text message, did have some testamentary features. She also argued that he never sent it. She argued that by not sending it, that meant he had not made his mind up.
Olivia Rosenman: [00:27:44] David and Jack had a different explanation.
Katherine Biber: [00:27:47] So they said that the fact that the text message was not sent reflected Mark’s effort to ensure that nobody would try and stop him from killing himself.
Olivia Rosenman: [00:27:55] They said it was clear that the text message was a will.
Katherine Biber: [00:27:57] They argued that he used the words my will. He’d also included details that made it seem to be a well. He had his PIN number for his bank account. He had other information about where his assets could be found. He had information about his date of birth, and he had information about where he’d like his ashes to be placed.
Olivia Rosenman: [00:28:18] The judge considered statements from David, Jack and Julie, as well as Mark’s mother, his first long term partner, another good friend and a digital forensics expert. Reading the judgement of the case, it’s kind of chilling just how much of the messiness of these people’s lives is laid bare. The court documents says Mark and Julie had a difficult relationship with lots of ups and downs. They had been together for about three and a half years and they’d been separated a few times. Their most recent separation was just a few days before Mark had died. I wanted to know what the whole experience was like for David and Julie after the trauma of losing Mark to suicide. They had to dredge up all these intensely personal details for a judge to make a decision on whether or not this unsent text message could be considered as Mark’s will. So I tracked them down. I got onto David first and we spoke on the phone. He told me about his close relationship with Mark. They were only 13 months apart and shared everything with each other. The legal battle had taken a huge toll on David. He was pretty blunt in describing his animosity towards lawyers, and that’s even though he won. If you can call what happens in these situations winning.
Olivia Rosenman: [00:29:34] David agreed to an interview for this podcast, and then not long after agreeing to talk to me, he sent me a text message letting me know he’d changed his mind. More than three years later, he said he was still too traumatized by everything that had happened. Later I found Julie. I could hear she was quite upset to be talking about it, but she told me she was really relieved to finally be able to tell her side of the story. So I booked a studio and we set up an interview for the next day. That morning I received a text message canceling our appointment.
Tamson Pietsch: [00:30:07] I mean, I guess that’s fair enough. Really?
Olivia Rosenman: [00:30:10] Yeah. I thought a lot about the conversations I had with both David and Julie. It struck me that even though the law had tried its best to work out what it was that Marc really wanted, its process, its way of making a decision caused the massive human cost to those he left behind.
Tamson Pietsch: [00:30:28] In Mike Nichols case then the court ultimately decided that the unsent text message was a document and that it was intended to act as a will?
Olivia Rosenman: [00:30:36] Yes, but thinking about the question of why he did or didn’t send it. You can see how when it comes to informal wills left on digital devices, the courts are faced with slightly more slippery situations than writing on a tractor or a wall. And in these situations, they don’t just look at what the documents says, but also the context of how it was made, how the person who created it used technology when they were still alive.
Katherine Biber: [00:31:02] People who use digital technologies in certain ways might hold it in a different regard. So, for example, I send very casual and informal text messages. And if I was trying to convey something formal, serious and final, I probably wouldn’t do it in the form of a text message. The law looks to the intentions of the individual. And if I am known as a person who likes to create formal documents when I’m trying to create binding states of affairs, then the court will know not to regard my various text messages as legally binding documents. Whereas another person who relies heavily on digital communications for all sorts of administration may be more likely to have their digital artifacts regarded as binding legal instruments.
Olivia Rosenman: [00:31:56] But there’s a little problem in how these judges might arrive at their decisions.
Katherine Biber: [00:32:00] Look, I think it’s probably a generalisation, but not an entirely flawed one, to say that most judicial officers are not as adept at using digital technologies as the people whose digital artifacts they are left to make decisions about.
Olivia Rosenman: [00:32:19] Of course, it’s not just judges who struggle with technology. What happens when you make a digital will, but you forget the password?
Kate Shepherd: [00:32:28] Okay. Roger was…I always grew up thinking of him as a cousin, but he was kind of more like an uncle figure to me. So he was younger than my mom, but not close in age to me.
Olivia Rosenman: [00:32:40] This is Kate Shepherd. Kate and Roger share a great, great grandparent in common, making them second cousins once removed.
Kate Shepherd: [00:32:47] He was quite bohemian. He lived in Balmain in a three bedroom terrace house that he’d inherited from family. Whenever we went up to Sydney, that’s where we stayed. He did a lot of work, sort of collecting vintage suitcases and curios and selling them on at markets. He was really into science fiction. Shoulder-length henna red hair. For a while, he had to wear an eye patch after a motorbike accident. He really was a great eccentric bohemian uncle figure. He was great.
Olivia Rosenman: [00:33:17] As she grew older. Kate would often visit Roger and his home in Balmain.
Kate Shepherd: [00:33:21] Often I’d come over just for a cup of tea or to drop in, and as soon as I arrived he’d say, Would you like a slice of cake? And I’ve unwittingly say, Sure. And he proceeded to bake it from scratch. So you stayed much longer.
Olivia Rosenman: [00:33:33] Roger was 52 years old when he died in 2012. He had an ongoing heart condition, and that year his health had been worsening. So he agreed to finally have a heart surgery that his doctors had long recommended. But he’d just kept putting off.
Kate Shepherd: [00:33:47] I remember visiting him in the hospital after his surgery, and he already looked better. He was telling stories. He got to the point where his laughing and he had to hold a big rolled up towel against his chest so that he didn’t pop the stitches, but was looking at with this cheeky look like ‘dont make me laugh. You’ll kill me’.
Olivia Rosenman: [00:34:07] The surgery was a success, but then suddenly a couple of weeks later, Roger passed away. A few months before he died, Roger had told Kate’s mum that he’d made a will, that he’d encrypted it. And he told her the password. But the problem was he didn’t tell her exactly where he’d put it. And to make things trickier, she forgot the password. A little while after Roger died, some of his friends found a USB stick in a drawer in his house. It had an encrypted file on it.
Olivia Rosenman: [00:34:37] The encrypting it like…was that surprising? Was he particularly tech savvy? Was he a little bit maybe paranoid? Like it’s an interesting move.
Kate Shepherd: [00:34:46] Both. Neither of those are surprising for Roger that it’s encrypted. One hundred percent expected anything that was his personal files and also paranoia. Believes that people watching whether or not he saw it as paranoia. But he was very into all of that. And yet he wrote everything down in a diary hardcopy as well.
Olivia Rosenman: [00:35:09] Ironically, the encryption wasn’t difficult to crack. And behind it was a document listing out in 16 detailed paragraphs what Roger wanted to happen to his house and all his things.
Kate Shepherd: [00:35:21] I found out that I’d been left the house in Rogers will, from David’s legal team. David was Roger’s brother. He was challenging it, saying it was not legal will and that Roger had died intestate.
Olivia Rosenman: [00:35:34] Remember, intestate is when someone dies without having made a will.
Kate Shepherd: [00:35:38] And yet to send out a notice to everyone named in the will saying you’ve got I think it was two weeks or however long it is, that the official amount of time that you’ve got to register if you do want to challenge that he’s intestate. And of course, I I wanted to. I’d never expected to have anything left to me. But looking at it, it so looks like Roger’s wishes. The document just reached Roger that that was what he wanted. And I felt like I’d kind of been left the job of doing what he wanted. And of course, it was also a great opportunity for me being left a house.
Olivia Rosenman: [00:36:17] Roger’s will is reproduced in the case judgment, which is a public record of the New South Wales Supreme Court. Each of the 16 paragraphs describes a treasured object of his. I imagine him sounding something like this.
Voice Actor: [00:36:31] To Lou Francis Grech, artist of Coogee…to my mate Melissa Docker, dancer, last residing in London…small proportions of Tasmanian origin containing two enclosed plinths and a central drawer. To Caroline’s daughter Sasha May O’Connell I bequeath a rose gold Rolex wrist watch circa 1920s which is the provenance of Margaret Burch late of New Zealand.
Olivia Rosenman: [00:37:11] Roger had a way with words. He also had a lot of stuff.
Kate Shepherd: [00:37:15] A lot of people describe him as a hoarder or a borderline hoarder.
Olivia Rosenman: [00:37:19] After all, the objects that were named in the will were distributed everything left over was.
Voice Actor: [00:37:24] To be divided equally by agreed market value amongst all of the above named beneficiaries of this will. If any items in this method of choice are disputed, then such items shall go to the beneficiary demonstrating the greatest financial need.
Kate Shepherd: [00:37:44] It’s an idealistic will. It trusts in the best of people. It’s a beautiful will. When I first read it, my heart kind of swelled. I was like, yeah, that’s that’s Roger. And the hope that all people named can agree on everything be found, be in the same room, organise things. But the practicalities of getting it to work. Not quite as ideal as the vision of what it would be.
Olivia Rosenman: [00:38:14] Kate got a lawyer and entered a legal challenge against Roger’s brother. After a failed attempt at mediation, the case was heard in court in August 2015 three years after Roger had died. The legal costs to get to this point had already ballooned. And because these costs come out of the estate Roger’s house had to be sold to fund the case.
Kate Shepherd: [00:38:36] I would have loved to have lived in that house. Not only was it a beautiful house in a beautiful location. It’s one of the first places I went to when I came up to Sydney as a child. So I had beautiful memories there.
Olivia Rosenman: [00:38:47] And like so many of these cases, the people who stood to gain the most were the lawyers and the court.
Kate Shepherd: [00:38:54] In the end, the majority of the estate went to legal fees because of all of the back and forth. Which is sad.
Olivia Rosenman: [00:39:02] After two days in court, the judge found that Roger’s encrypted file was a valid informal will. So Kate became the prime beneficiary. And this made her the primary person responsible for all of Roger’s stuff, which, because the house had been sold, was now packed into four storage lockers, kind of like an archive of Roger’s life.
Kate Shepherd: [00:39:24] Once I was given the keys to the lockers, I just started going every weekend for it. In my school holidays in particular. I just come to a black garbage bag, open it up to see what it was. And it’d be garbage bags full of silk ties organised into rough colours. So one of blue, one of reddish maroon, one of yellowish gold. Just going through them and I’d often have these kind of mental conversations with Roger. So these must have been for markets. Please tell me these were from markets.
Olivia Rosenman: [00:39:57] How long did it take?
Kate Shepherd: [00:40:01] More than two years. From from the judgment, not not the court case. From the court case, from the judgment being made, to me finishing the final locker – about two years.
Olivia Rosenman: [00:40:15] But after everything Kate went through, she says she doesn’t regret it.
Kate Shepherd: [00:40:19] It was hard, but I felt like I was left the job for a reason.
Olivia Rosenman: [00:40:24] It’s really sad that the beauty of the will then turned into this legal saga. I mean, what do you think he would have made of all of that if he’d known that that would happen? You think he would have just gone to a lawyer?
Kate Shepherd: [00:40:37] I try not to think about that thought too much. I hope he would have just gone to a lawyer. It would have been much more simple for everyone. But as knowing Roger, I think maybe part of him that would kind of enjoy being the center of attention and having everyone quibbling over things in court. But he’d also would have been very angry and very frustrated at how a lot of things went.
Olivia Rosenman: [00:41:02] I sat with Kate on kitchen stools at the breakfast bar in her apartment when her mother in law took her tiny 7 week old baby off her hands. She showed me a few of the things that she had kept, that were Roger’s.
Kate Shepherd: [00:41:15] That little glass jar that has the plant growing in it.That was from Roger’s kitchen. Four of the spoons and spatulas. I have that kind of stuff around and I find it really comforting. That’s actually the part I like most. The little small things that are in the kitchen that remind me of him in a nice way.
Olivia Rosenman: [00:41:40] And while she isn’t living in Rogers House, what she finally ended up with after all the legal fees is enough for a decent home deposit. And that’s what she intends to spend it on. But the whole saga has also left her with something else she knows would have made Roger happy.
Kate Shepherd: [00:41:58] It’s a dramatic story to be told over a table at dinner, which is exactly what Roger would have done.
Katherine Biber: [00:42:06] But in the end, what the court wants to know is what did Roger express as his permanent testamentary intentions? And they’ve had this one document that he’d password protected on his computer. And the question was, is this his last will and testament?
Olivia Rosenman: [00:42:24] After considerable effort, the law made a call on his final wishes. And after all of this, those wishes have finally been carried out.
Katherine Biber: [00:42:32] Digital artifacts and devices have disrupted what we’ve expected people to do in order for their wishes to be legally valid and formal.
Olivia Rosenman: [00:42:41] But there’s one thing technology hasn’t changed.
Katherine Biber: [00:42:44] We still die. Death is still death.That is a material reality and things are still things. They don’t suddenly acquire special new powers because we have died and our things continue to survive. So I feel like the technology is a tool, but it’s not transformative of what it means to die and what it means to give your things to another person.
Olivia Rosenman: [00:43:10] The law still has its way of knowing. You’ve been listening to History Lab. This is the first of our four part series where we look at the intersection of history and the law. If this episode has caused you any distress, please call Lifeline on 13 11 14.
Olivia Rosenman: [00:43:27] If you’d like to see the tractor fender and other bonus content from this episode, head to our website history lab dot net. And if you’ve got a good story about an informal will, will don’t you let us know on Twitter? We’re at History Lab Pod. Now roll the credits.
[00:43:42] History Lab is made on the lands of the Gadigal people of the Eora nation whose land was never ceded. Thank you to our collaborating historian for this episode, Katherine Biber. This episode was made by our Senior Producer, Olivia Rosenman. The Executive Producer was Emma Lancaster. Sound engineer and mixing was by Output Media. Story Consultant and Editor was Belinda Lopez. We’re grateful to the UTS Law faculty and Priya Vaughn. To those we spoke to: Geoff Ellwand, Grant Keneally and Maria Bouzas, Judge Christopher Legoe, David Nichol, Julie Vider Nichol and Kate Shepherd. To our voice actors Andrew Pople, Yuri Cherniavsky and Peter Fray. And a special shout out goes to our GLAM friends around the world, including Robin and her team at the University of Saskatchewan Law Library, who carefully measured the tractor fender, to help us better describe it. And to the ACT Supreme Court for opening up their probate office to us. History Lab is made by the Australian Centre for Public History and Impact Studios at UTS in collaboration with our media partner 2SER 107.3
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Aboriginal and Torres Strait Islander people should be aware that this episode contains the voices and names of deceased persons.
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