20/11/2012
This is the letter being sent to the Ombudsman highlighting the failure of the STL at defending the estate adequately.
Dear Sir/Madame
We would like to bring your attention to a recent case that has been before the Supreme Court (Whitehead v State Trustees Limited 2011) and the Supreme Court of Appeal Victoria (State Trustees Limited v Whitehead 2012).
We are residual beneficiaries of the estate that was defended by State Trustees Limited (STL) and would like to lodge a formal complaint as a matter of urgency (because of time constraints) and hopefully have your office look into how this estate was handled in a legal sense by STL.
Unfortunately STL was unsuccessful in defending the estate in both the initial trial and the appeal. We believe the initial trial could have been better handled with more evidence produced at trial to convince the court that there really was no case to answer to and that the now deceased first plaintiff was committing perjury by fabricating evidence and outright lying to the court.
Many items of interest and evidence were either over looked or ignored by STL with the main reason given to us as "it was not required" or we were just told to "drop it".
We believe that had STL gathered more evidence, allowed us to produce more affidavit material from more people, gave us the option to question the evidence produced by the plaintiffs (beneficiaries and close friends), and put more witnesses from our side on the stand for questioning/cross examination, then we would have had a fairer trial and ultimately a successful outcome for the estate.
Apart from one major beneficiary with limited independent legal representation, none of the other beneficiaries have had any experience with the Courts. As a result of our requests being ignored by STL, we employed limited independent legal representation to force STL into action. We now have an additional $30,000 legal bill to be paid separate from the estate.
We believe that when the Court (both at initial trial and the Court of Appeal) questions why certain things were not done at the initial trial, then there seems to be a real problem with the way it was defended.
Examples of what we believe were ignored or just deemed as not important by STL are as follows:
- the second plaintiff was not put on the stand for cross examination (Bell J questioned this at the initial trial),
- phone records were not requested by STL from the first plaintiff and our own estate (the deceased's phone records) ,
- receipts were not requested by STL from the first plaintiff for evidence,
- bank statements were not requested to refute evidence given by the first plaintiff,
- bringing to the courts attention during the initial trial that the dates and time frames for the first plaintiffs claim of abortion did not make medical sense and would not have been performed unless under a medical emergency,
- not cross examining Lionel Whithers,
- not putting myself and/or my two sisters on the stand for examination/cross to remove any doubt that my Fathers Will did not provide for us (the plaintiffs conceded this fact in Court but the Court seems to have ignored this fact),
- questioning the Father of the second plaintiff,
- requesting evidence that the Father of the second plaintiff was not supporting him,
- ignoring evidence from us that the second plaintiffs Father was in fact living with him and the first plaintiff,
- ignoring evidence from us that the first plaintiff was committing perjury,
- failing to have the diary evidence produced by the first plaintiff removed when they were not able to produce the originals,
- not putting Terry Grey on the stand to emphasize that the original Will was "good enough" (among other things) and to allow him to prove/explain to the court that if anyone was privy to the private life of Barry (deceased) it would be him. Terry's affidavit was uncontested during trial, but again, the court has ignored this fact,
- Two of the boyfriends (Rob and Ilia) of the first plaintiff were not searched for and questioned about their time with the first plaintiff,
- not putting Freda and Sandra on the stand,
- failing to make the court understand that the original and named beneficiaries have major and pressing needs, one has Downs Syndrome and will require 24/7 care in the close future,
- not allowing us to provide more affidavit evidence from close friends of the deceased (this included long term female friends), it was deemed that what we had was enough,
- not requesting further evidence about the engagement ring,
- not questioning the first plaintiff why it took her almost 6 months to "remember" she was engaged to Barry, people don't forget things like this, even if you had a bad memory,
- investigate why it took Bell J 9 months to deliver his judgment in the initial trial,
- failing to explain to us the risks involved by not calling the handwriting expert,
- ignoring our requests to push for more evidence from both our side and the plaintiffs,
- failed to request reports from hospital and care nurses that looked after Barry in hospital and his residence during his final months,
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As it stands now, the estate has to pay $850,000 in legacy to Kim Whitehead (deceased) and her son Alex Whitehead (minor), interest on this legacy from 2011, legal fees for the plaintiffs, our own legal fees, and the double dipping fees for handling the estate that STL charges.
The Court seems very naive if it believes the legacy paid to the plaintiffs is a fair amount, or in its words "just under half of the value of the estate". It is far from "just under half" when every thing is taken out. The estate is left with less than one third of its value to be divided among the real beneficiaries, some with very major and pressing needs. To make matters worse, the first plaintiff is now deceased and in all likelihood, her legacy of $450,000 will go to the second plaintiff allowing him to receive 40% of the estate.
We would like your office to investigate this matter fully and provide us with advice of how we can be compensated for our loss or force the courts to quash the judgments and have a retrial or a report we can use to provide the court with evidence that STL failed to defend the estate to the best of its ability, allowing us to sue them. In the mean time, we would like the assets of the estate frozen until something can be done to rectify this matter.
Thank you for your time,
Steve Samson, Karen Samson, Christine Samson.
