The Person
Page 6
condition – similar to cancer but utterly non-receptive to the treatments which had all-but-cured that disease by the late 10’s.
89: David’s body was undergoing a series of uncontrolled and seemingly random mutations, which his body was interpreting as ‘alien’ and then trying to destroy. Just as transplants used to be subject to rejection (before the development and perfection of organ-regeneration techniques), his body was rejecting anything it did not recognise – which was an increasingly high proportion of his own body.
90: Finally, Marisa had an explanation for her husband’s recent behaviour. Scans of his brain indicated mutations so severe that it was surprising he was able to function sensibly at all.
91: He was taken, against his will, to a mental health facility – being the only type of facility (other than a prison) with the security necessary to deal with his explosive rage and destructive behaviour. A team of medical specialists from around the world began working on his case, without success. The mutations became more severe, such that by mid-October 2023, he could no longer walk, could not speak and was only able to breathe with the assistance of medical support.
92: Physically, it was difficult to reconcile this figure with a human being. Tumours bulged from his skin and forced other parts of his body out of position. One of his arms had been forced backwards at the shoulder, whilst one knee now bent the wrong way at almost ninety degrees. I had the unpleasant responsibility of examining photographs of David in his last few months, and I must say it is remarkable he lived as long as he did. This was of course the result of highly advanced technology rather than any strength on his part. If he had possessed the ability to communicate, no doubt he would have asked for the machines to be turned off many months earlier.
93: Finally, on 23 December 2023, David died. A sigh of relief was breathed by many.
Cause of death
94: It may appear surprising to the reader that the medical community remained baffled as to the cause of David’s condition until a number of months after his death. It was named Baxter-Gelling Disease after the two doctors who led the team, but this ‘disease’ was nothing more than a description of David’s symptoms without the slightest suggestion as to cause or treatment.
95: The reason the doctors remained so baffled is that it was not until after his death that they discovered the history and significance of his birth. The doctors had of course identified irregularities in David’s DNA, but had put it down to mutations caused by his condition. Perhaps highlighting the need for a holistic approach to medicine, no-one had bothered at that time to investigate his past. As soon as the identity of his father was appreciated and his DNA re-tested in light of this discovery, the diagnosis of Baxter-Gelling Disease was replaced by a diagnosis of “chimera rejection disorder”.
96: Chimera rejection disorder is a well-known problem which arises when creating a clone which contains DNA from two or more species. Humans have been regularly melding species together using cloning technology since about 2015 – indeed, those younger readers may be surprised to hear that the vaxel, the kelli-grouse and the jub – now common domestic pets – did not exist in my youth, as well as a myriad of lesser-known chimeras used for agricultural and scientific purposes.
97: Many attempts to mix species resulted in just these sort of problems – massive mutation, rejection and death. Sometimes it happened in the womb, some times immediately upon birth and other times, like David, after a significant period of apparently healthy life. Whilst well-known, little attempt was made to ‘cure’ the problem, because there was a much simpler and cheaper alternative – try a different combination. If a particular chimera displayed symptoms of chimera rejection disorder, it would be humanely put to death and a new combination would be attempted. There was an infinite variety of combinations to be tried (keeping in mind that any one of thousands of parts of a DNA strand can be mixed with any other part of a DNA strand) that there was no commercial benefit to finding a cure for the condition.
98: No mention is made in Mr Baker’s journal of the possibility of his son suffering from this condition, although it cannot be suggested it had not occurred to him. Anyone in that field would have been aware of it, and Mr Baker was at the top of the field. Whilst it is not relevant for the purposes of this action, we can only presume that his failure to mention it resulted from a combination of confidence in his own science, deliberate optimism and wilful blindness.
The Defendant’s case
99: This in an action by the Plaintiff, Jennifer Forbes, to prove the Will in solemn form, the effect of which would be to appoint her as executor and sole beneficiary. The Defendant, Marisa Baker, objects to the will being proved.
100: There is no dispute as to testamentary capacity nor to the validity of the Will itself. The Defendant relies upon a rather less traditional basis for invalidating the Will. It is an argument which is as simple as it is remarkable. The Wills Act 1970 (WA) inter alia gives Western Australians the power to create a will – that is, to turn an ordinary document, which otherwise would have no testamentary effect, into a valid and effective will with all the legal results that flow from that. Paragraph 6 states as follows:
6. Provision that may be made by will
A person may, by a will executed or made in a manner required or permitted by this Act —
(a) dispose of property (whether acquired before or after the making of the will) to which at the time of the person’s death the person is entitled either at law or in equity;
(b) dispose of property that in exercise of a power of appointment the person is entitled or able to dispose of by will; and
(c) appoint a guardian of any infant child of the person.
101: Marisa’s case, put simply, is that David Baker was not, at the time he signed the Will, a “person” for the purposes of the Wills Act. Accordingly, David did not have the power under such Act to create the Will or any testamentary document. It follows that David does not have a valid will and has therefore died intestate.
102: Section 14(1) of the Administration Act 1903 (WA) determines the distribution that shall occur in the case of intestacy – in this case, “the surviving husband or wife shall be entitled, absolutely, to all household chattels included in the intestate property” (my emphasis). To juxtapose David’s words, “Marisa gets everything. Jennifer gets nothing.”
Initial complications
103: It is probably not surprising, in light of the extraordinary nature of Marisa’s case, that I began the hearing with a degree of scepticism. One issue that particularly concerned me was the greater legal effect should I find in Marisa’s favour. If David was not a “person” capable of signing a will, how could he be a “person” capable of owning the very property Marisa is trying to take ownership of?
104: Furthermore, how could David have married Marisa in the first place, thus giving her the right to his estate via intestacy? The definition of “marriage” in the Marriage Act 1961 (Cth) is “the union of two persons to the exclusion of all others, voluntarily entered into for life”[7] (my emphasis).
105: Would his entire life need to be unravelled, reversing any transaction which occurred during his lifetime which only a “person” is entitled to do? Given that David’s father had no relation who may be entitled to his estate on intestacy, if his gift to David failed by reason that his son was not a “person”, “the whole of the intestate property passes to the Crown by way of escheat”[8].
106: In light of my concerns, Marisa’s solicitors undertook to invite the following entities to be joined and heard on this matter if they wished to do so:
(a) The Crown (the potential beneficiary of Mr Baker’s estate); and
(b) Landgate (in the event that it wished to dispute David’s ability to own property).
107: Neither of those entities took up the offer, and that is probably not surprising. The Crown (via the State Solicitors Office) made it clear that it did not wish to become involved in personal disputes and the sum at issue,
whilst significant to most, is of little significance to the Crown.
108: Landgate issued this statement:
“It is Landgate’s view that David Baker was entitled to own property during his lifetime. Should that position be challenged, Landgate will vigorously defend its position. Landgate’s understanding however is that this view is not being challenged by any party to this action. Mr Baker’s right to own property arises from different legislation from that which gives him the right to produce a will. It is Landgate’s view that a finding in favour of the Defendant in this case will be relevant to the Wills Act alone.”
109: After some consideration, I accept Landgate’s view. The definition of “person” is not necessarily consistent between legislation. To take but one example, “person” is defined in the Interpretation Act 1984 (WA) as “...includes a public body, company, or association or body of persons, corporate or unincorporated”. Yet section 53P(5)(c) of the Human Reproductive Technology Act 1991 (WA) (in an attempt to find a relevant example) defines a “prohibited embryo” as “a human embryo that contains genetic material provided by more than 2 persons”. Self-evidently, the use of the word “person” in this case is specifically directed to a human person – ie. one with genetic material – and