David Baker does not have the same DNA as an ‘ordinary’ human being, just as Kevin did not have the same DNA as an ‘ordinary’ man.
166: But it is not that simple, and my decision is not that easy.
167: I note by way of aside that the Kevin case considers relevant the way Kevin saw himself, and the way that others saw him. Unfortunately, that is not of great assistance in this case. Had David and/or the world known of his unusual DNA, and had David and others acted exactly as they in fact did, this would be of critical importance. That is not the case.
168: To the contrary, the particulars of David’s DNA were not known until after his death, such that there is simply no evidence to draw on. A human born in the jungle may genuinely consider itself to be a tiger or a bear – but this does not make it so. Perhaps David would have been shunned. Perhaps he would have exiled himself. Perhaps he would have been put in a zoo or a laboratory for testing against his will. We do not know.
169: I am left therefore with the task of examining all of the circumstances of David Baker, and making my decision on the entire matrix of facts which made up his existence. None of those facts in itself were sufficient to make a finding, but together they must lead me to an answer.
Was David Baker a ‘person’ at the time he made the will?
170: Physically, David Baker was for all intents and purposes an ordinary person. His unusual DNA is a factor against him being considered human, but I do not think it is a strong one, and less strong still as it relates to him being a person. Would it have made a difference if his DNA consisted of 50% rodent DNA rather than the miniscule percentage he in fact had? Of course it would have. Would it have changed things if he walked on four legs and grew a tail? Of course.
171: But neither was the case. David walked, talked and looked like an ordinary person.
172: But did he think like one? If he did not – if indeed his mental and emotional characteristics were inhuman – I would find it difficult to conclude that he was indeed a person irrespective of how much he may have looked like one.
173: In this respect, David demonstrated an almost complete disregard for human emotion. He was not disgusted nor angered by it – he simply did not seem to care for it or even really understand it. To say he was distant is too weak a description – he appeared to be incapable of closeness. Neither his wife nor his lover were prepared to say that he loved them, or indeed that he was capable of love.
174: Can someone without the ability to love be a person at all? Certainly there are a number of poets and romantics who would not think so. Frank P Tebbetts says:
“A life without love in it is like a heap of ashes upon a deserted hearth, with the fire dead, the laughter stilled and the light extinguished.”
175: Kahlil Gibran[13] says:
“Life without love is like a tree without blossoms or fruit.”
176: Indeed, this incapacity to love appeared to be at its peak at the time he signed the Will. He was cheating on his wife, seemingly without a shred of guilt. Whether he was suffering fugues or the like, it was not denied that he knew full-well what he was doing. Not only did he apparently not care, but there was no indication whatsoever that he recognised the wrongness of his actions.
177: If the evidence had ended there, I would have had leaned towards the Defendant’s view. It is true of course that there are sociopaths and psychopaths who demonstrate similar tendencies to David Baker, but this is not only an extreme case but one in which the circumstances of his birth may well have played a part. His father had no family history of mental illness and certainly not of psychopathy or sociopathy. No person with non-human DNA has, to the best of the world’s knowledge, been born. It would seem too coincidental that the one individual who was born a chimera happens to have a personality disorder which, to this degree of severity, affects a tiny minority of individuals. I find it more likely than not that the two are related.
178: I do not, however, agree with the Defendant’s view. I am of the view that David was, at the time of signing his Will and, if it were relevant, for his entire life, a human being and a person.
179: The relevant portion of the will reads, “Marisa wants me to be someone that I am not. Jennifer takes me for who I am. Marisa gets nothing. Jennifer gets everything.” What does this mean? Who does Marisa want him to be?
180: The answer is obvious and was never in dispute. The psychiatrists called to give expert evidence were in agreement – and in truth, I wonder whether it was necessary to call experts for this purpose – that David despised his earlier ‘sibling’, whom his father compared him to, and despised those who sought to compare them. In truth, it was only his father who did so, but in David’s mind – particularly once the tumours began to affect it – he saw it in others, and eventually in everyone.
181: David did not know he was a clone of his younger ‘brother’ – or at least, there is no evidence to suggest that he knew. On the other hand, he was a highly intelligent child and a fiercely intelligent adult. He must have seen pictures of the young David and questioned why they did not just look like brothers but looked identical. Maybe his father told him but never mentioned it in his journal. This seems unlikely, but possible.
182: Or perhaps he knew without consciously knowing. Perhaps this was the true source of his frustration – he hated this brother; hated the constant comparisons to him (real or imagined), but had no idea why he felt such hatred. If he had known the truth, he could have explored the logic of those feelings and perhaps overcome them. Instead, he was left with powerful, crippling hate that he could neither understand nor control.
183: Love is considered amongst most of the community as a singularly human emotion. David did not appear capable of love.
184: But jealousy and hate – these too are emotions exclusive to human beings. A dog will kill another dog for all number of reasons – for food, for a mate, to protect its territory. But a dog will never kill a dog because it hates it.
185: Humans, on the other hand, appear to revel in hate. Humans have hated for as far back as our records go. Indeed, if one were to read every history book ever written, you could be forgiven for thinking that humans only hate, and that love is a concept reserved solely for poets and singers to dream up from the depths of their imagination.
186: All the circumstances I have described herein, taken together and in context, leave the question delicately poised. David’s capacity for hate pushes him over the line. I find that he was a human being and a person for the purposes of the Wills Act. Accordingly, I dismiss the Defendant’s application and order that the Will be executed in accordance with its terms.
187: I will now hear submissions on costs.
* * * * *
[1] Exhibit 1 - James Baker’s journal at page 97
[2] James Baker’s journal at page 126
[3] Exhibit 1 - James Baker’s journal at page 194
[4] Exhibit 1 - James Baker’s journal at page 273
[5] Exhibit 1 - James Baker’s journal at page 371
[6] Exhibit 1 - James Baker’s journal at page 400
[7] As per the amendments set out in the Homosexuality and Transgender Equality Amendment Act 2016 (Cth)
[8] Section 14 of the Administration Act 1903 (Cth)
[9] [2008] NSWSC 1292
[10] At page 17
[11] [2003] FamCA 94
[12] The Marriage Act 1961 (Cth) was of course amended in 2018 to allow marriage between any two “persons” - thankfully, as mentioned in the course of this judgment, I do not need to decide whether David Baker was in fact a “person” for the purposes of that legislation.
[13] Lebanese American artist, poet and writer (1883 - 1931)
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The Person Page 10