on was his sudden and unexplained absence. This was greeted with surprise but not concern.
David’s relationship with the Plaintiff
74: In May 2023, David commenced an extra-marital relationship with the Defendant, Jennifer Anne Forbes.
75: Jennifer gave evidence of their first meeting as follows:
PLAINTIFF: I was at the shops.
L I WHITE: Which shops were they?
PLAINTIFF: The Rockingham shops.
L I WHITE: And what were you doing?
PLAINTIFF: Shopping with my mum.
L I WHITE: And what was your first experience with the deceased?
PLAINTIFF: Well, I was just there picking some cereal off the shelf, when all of a sudden this guy is there. And he was, like, wearing a suit. Well, not a suit. Like, nice clothes. A jacket and stuff. And I can’t remember the last time I saw a guy wearing nice clothes like that in the Rockingham shops – especially on a Sunday morning. And he was staring at me, so I, like, said to him, “What the hell are you looking at mate?” And he said, “I was thinking you might want to come for a ride.”
L I WHITE: What did you say?
PLAINTIFF: I said ‘Alright’. He was a pretty good looking guy, and I didn’t have anything else to do, so I left my mum to do the rest of the shopping and went out with him.
L I WHITE: Where did you go?
PLAINTIFF: He had this really nice car – this BMW – and he took me to the casino. And I don’t really like to go to the casino because I can get in trouble there sometimes, but he was giving me all this money to bet with and buy drinks with and stuff, so it was okay. So we did that for a few hours, then he’d already booked a room in the hotel there, so we went up to the hotel room and ordered a bottle of champagne.
L I WHITE: What happened then?
PLAINTIFF: Ha, well, I reckon you know!
SAUL CJ: Ms Forbes, I suppose it’s fairly obvious, but you will need to tell the Court for the record.
PLAINTIFF: Well, we did it.
L I WHITE: You had sex?
PLAINTIFF: Yeah.
76: Jennifer gave evidence, which is again not disputed, that she saw David approximately once a week for the next six months. They would generally meet on a Sunday, and he would always pick her up. They never exchanged phone numbers. He never entered her house (which she shared with the aforementioned mother) and she never entered his. Jennifer described the relationship thus:
PLAINTIFF: It was good. It was kind of like a distraction, and I reckon that’s what he wanted too. Like, he would never, ever talk about his life. Ever. I tried to ask a few times at the start and he got really mad. He always wanted to talk about my life – as if me answering phones was more exciting than him studying his course or whatever – which I didn’t even find out he did until after he was dead. He always wanted to do stuff – like, he would never just want to sit around and talk. He’d always want to be going somewhere or doing something. Gambling, drinking, having... you know, doing it. It was like if he stopped for even a second he’d have to think about something he didn’t want to think about. But I never knew what that was.
77: Throughout this period, Marisa was suspicious but had no specific evidence of wrongdoing. David told her he was going to the library to study. Perhaps if that were the only change in his behaviour, Marisa might have questioned him further. As it was, his disappearance on Sundays was the least of her concerns – indeed, she testified as such:
M KELLY: You have already said that you suspected he was having an affair. Why didn’t you question him more directly about where he was going on Sundays?
DEFENDANT: At that stage, whether he was having an affair or not didn’t really bother me. It would have been like catching a cold while battling terminal cancer. At least I would have known what to do if I caught him cheating. I’d have yelled at him, thrown him out, got a divorce, whatever. But this other stuff – this... this madness... I just had no idea. I was completely alone and completely confused.
The Will
78: And so we come to 17 June 2023, when David approached Ms Natalie Kumar of Kumar Pollard Solicitors to witness him signing a will (“the Will”). A junior solicitor at the firm, Mr Michael Watson, was called in by Ms Kumar to act as the second witness.
79: It may surprise the reader to discover that David’s testamentary capacity at the time of signing the Will is not in issue. Although I have no doubt that the Defendant’s solicitors thought long and hard about this issue, they have chosen – I believe correctly – not to contest it. This is thanks largely to the thorough and careful job done by Ms Kumar and Mr Watson in ensuring that he understood the terms, significance and effect of the document he was signing. They satisfied themselves, and recorded the process in a holograph which this Court has seen.
80: As Mr Watson so eloquently put it in his testimony:
M WATSON: The guy was a freak. I mean, seriously, I knew he was a freak the moment I walked through the door. Nat said he was a bit weird and we had to be careful, but... I mean, it didn’t matter what the will said – he was just... I dunno, creepy. I mean, I guess we know why in hindsight but at the time, I just thought... well, he was a freak.
M KELLY: So can we take it that this was why you were so careful to ensure he had testamentary capacity?
M WATSON: Hell yeah. Oh, sorry Your Honour.
81: David did indeed go through each term of the will with a thoroughness that really left the Defendant with no option but to admit capacity. His demeanour throughout the recording was intense but patient. He made direct eye-contact with Mr Watson and Ms Kumar – indeed, it was obvious from the holograph that this was causing them both a degree of discomfort – and spoke clearly and deliberately.
82: The will was a simple one, drafted (it is presumed) by David himself. It was not even a page long. It contained a standard clause appointing Jennifer Forbes as executor (without allowing for the possibility that she would pre-decease him), and a rather less-than-standard clause as follows:
“3. Marisa wants me to be someone that I am not. Jennifer takes me for who I am. Marisa gets nothing. Jennifer gets everything.”
83: The will was signed and witnessed in accordance with the formalities required by the Wills Act 1970 (WA). It is therefore, subject to the arguments raised by the Defendant (which will be addressed below), a valid and binding statement of testamentary intent and should therefore be enforced in accordance with its brutally clear meaning – the Defendant gets nothing, the Plaintiff gets everything.
84: For the sake of clarity, I will complete the story before addressing the Defendant’s argument as to why the will should be overturned.
David’s death
85: In the following months, David’s condition passed beyond the point where it could be overlooked, whether by his friends or the medical fraternity. The breakdowns became more frequent and longer-lasting. No longer was it Marisa who bore the sole brunt of his madness. His lecturer in contract law, Mr Peter Martyn, gave evidence as follows:
P MARTYN: It was the 5th of September. I remember...
M KELLY: 2023?
P MARTYN: Yes, 2023. I was giving a lecture – on misrepresentation, I think. David had not turned up, which by that stage was pretty much a relief. But suddenly he was there, walking in and sitting down at the nearest desk.
M KELLY: What did you notice about him?
P MARTYN: Well, I think the first thing I noticed was the fact that he was bleeding all over the desk and floor. He’d made deep cuts all the way down both his arms.
M KELLY: What happened then?
P MARTYN: He looked at me, and at that moment I am certain – absolutely certain – that he genuinely thought nothing was wrong. He was just there for a contracts lecture. Ready to learn. His genuineness even made me hesitate – like I wanted to give the lecture all the same. But then he reached down – casually, like he was picking at a scab – and started gouging deep gashes down his arms with his fingernails. Then the students flew into action and ta
ckled him to the ground to stop him doing it again.
M KELLY: And what he did do?
P MARTYN: : He fought like Hell. He kicked and screamed and... He just went crazy.
86: On that occasion, the police did not become involved. From the moment David was dragged from his room, the fury seemed to drain from him. He became limp, whimpering, yet by the time he had been taken to the medical centre, he was his old self again, confused (but not overly concerned) about his injuries. He walked away without further comment and arrived home later that night. His wounds were bandaged, though no-one has found any record that he attended a doctor.
87: It was around this time – September 2023 – that the physical changes became apparent, although the medical evidence has indicated that they would have been going on internally for quite some time. It began with what appeared at first glance to be a bruise on his back and a rash on the side of his neck. Marisa dismissed them both as symptoms of his now regular ‘attacks’. A week later however, the ‘bruise’ had grown to the size of a golf ball and the rash was turning brown.
88: Marisa took David to the hospital during one of his now-rare ‘normal’ spells. A number of tests were done, and then more tests, and then specialists were brought in from around the country and yet more tests were done. Finally, weeks later (glossing over entirely a number of further incidents caused by David’s disturbed mental state), the somewhat hesitant conclusion was that David was suffering from a never-before-seen
The Person Page 5
