Supreme Court New South Wales

• Medium Neutral Citation: Burge v Burge [2014] NSWSC 1772
• Hearing dates: 31 July, 17 October 2014
• Decision date: 11 December 2014
• Jurisdiction: Equity Division
• Before: Darke J

Decision

Court not satisfied that testator intended informal testamentary document to form his will. Grant of probate made in respect of earlier will.

• Catchwords: WILLS - informal testamentary document - alterations made to draft of existing will - document dated and signed by testator - testator aware of formal requirements for execution of wills - informal document not found with earlier wills - whether testator intended document to form his will - Succession Act 2006 (NSW) s 8(2)
• Legislation Cited: Evidence Act 1995 (NSW) s 140(2); Succession Act 2006 (NSW) s 8; Wills Probate and Administration Act 1898 (NSW) s 18A
• Cases Cited: Briginshaw v Briginshaw and Another [1938] HCA 34; (1938) 60 CLR 336; Estate of Ivan John Gonda [2012] NSWSC 357; Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900; Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786; Fast v Rockman [2013] VSC 18; Hatsatouris v Hatsatouris [2001] NSWCA 408; In the Estate of Kathleen Torr [2005] SASC 49; In the Estate of Masters (deceased) (1994) 33 NSWLR 446; Pahlow-Silady v Siladi (Court of Appeal (NSW), 22 April 1997, unrep); Williams v Public Trustee of New South Wales (No.2) [2007] NSWSC 974
• Category: Principal judgment
• Parties: Anne Bell Burge (plaintiff/cross-defendant); Conrad Michael Burge (defendant/cross-claimant)
• Representation: Counsel: V F Kerr (plaintiff/cross-defendant); P Blackburn-Hart SC (defendant/cross-claimant); Solicitors: Lane and Lane (plaintiff/cross-defendant); Lane and O'Rourke (defendant/cross-claimant)
• File Number(s): 2013/137871
• Publication restriction: Nil

Judgment

Introduction

1 The plaintiff, Mrs Anne Burge, is the widow of the late Rupert Burge who died on 5 January 2013 at the age of 93. He left an estate worth about $1 million, some of which consisted of property in New South Wales. Mr Burge also had an interest, as a joint tenant with the plaintiff, in a townhouse in Scottsdale, which is near Phoenix in Arizona. By her Statement of Claim, the plaintiff seeks an order that probate in solemn form be granted in respect of a will made by her late husband dated 15 March 1983. The will names her as the sole executrix. She is also the sole beneficiary, as she survived the testator by a month.

2 The defendant, Mr Conrad Burge, is the son of the plaintiff and the late Rupert Burge. He asserts that on about 10 June 2007, his late father prepared an informal will that purported to state his testamentary intentions and was intended to form his will. The document (which will henceforth be referred to as "the 2007 document") purports to revoke all former testamentary dispositions. Further, it names the defendant as the sole beneficiary, provided he survives the testator by a month.

3 By his Amended Cross-Claim, the defendant seeks an order that letters of administration with the will annexed be granted in respect of the 2007 document. Reliance is placed upon s 8 of the Succession Act 2006 (NSW) which is in the following terms:

"(1) This section applies to a document, or part of a document that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State."

4 There is no dispute that s 8 applies to the 2007 document (see s 8(1)). It is a document that purports to state the testamentary intentions of the late Rupert Burge, and it has not been executed in accordance with Part 2.1 of the Succession Act. Rupert Burge signed the document, but there is no attestation from any witness.

5 The critical question is whether the Court is satisfied that Rupert Burge intended the 2007 document to form his will (see s 8(2)(a)).

Applicable Principles

6 The applicable principles are also not in dispute. I was referred in particular to the decisions of the Court of Appeal (concerning the predecessor provision s 18A of the Wills Probate and Administration Act 1898 (NSW)) in In the Estate of Masters (deceased) (1994) 33 NSWLR 446 and Hatsatouris v Hatsatouris [2001] NSWCA 408.

7 In Masters (supra), Kirby P stated (at 451-452):

"A too rigid insistence that a document should have the formalities or other characteristics necessary to constitute it the deceased's "will" would narrow significantly the operation of the intended reform. Yet by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting "his or her will", the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased's will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions (such as Powell J thought the letter to Ms Plummer involved) and a document which, although falling short on formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death."

8 In the same case, Mahoney JA stated (at 455):

"There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will. A will, like, for example, a contract, a deed, and a sale, is, as it has been said, "an act in the law". It is something to which the law attaches the legal consequences of that kind of transaction: see Salmond and Williams, Principles of the Law of

Contracts, 2nd ed (1945) at 4 et seq, citing Salmond, Jurisprudence, 7th ed (1924) at 360. Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. Thus, a document which is in form a will will not operate as such if it is, for example, a draft or "a trial run", not intended to have a present operation. A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will. This may occur, for example, in informal circumstances, in a letter or a diary or the like. What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will."

9 Mahoney JA continued (at 462):

"Secondly, s 18A should, as I have indicated, be given a beneficialapplication. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion."

10 In Hatsatouris v Hatsatouris (supra), Powell JA (with whom Priestley and Stein JJA agreed) stated (at [56]):

"It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:

(a) was there a document?

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?

(see, for example, The Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray Powell J, 19 June 1992 (unreported))."

11 Both parties made reference to Briginshaw v Briginshaw and Another [1938] HCA 34; (1938) 60 CLR 336 at 362, and to s 140(2) of the Evidence Act 1995 (NSW), and submitted that those principles applied to proof of the testator's intentions in a case such as this.

Relevant Facts

12 Rupert Burge and the plaintiff were married in December 1948. It was a lengthy and, it appears, happy and loving marriage. They had two children, the defendant, born in October 1950, and Susanne Burge (now Susanne Rothwell), born in June 1952.

13 Rupert Burge was a distinguished scholar in the field of economics. After completing his studies at the University of Melbourne, he had a successful career as a statistician in the United States before returning to Australia in 1960 to become a merchant banker in Sydney. The family lived in a part of Mosman known as Beauty Point. He joined Patrick Partners in 1970, and suffered a significant financial setback when that firm failed in the mid- 1970s. At about that time, Rupert Burge and the plaintiff decided to pursue his dream of building a boat and sailing around the world. The plaintiff sold two investment units in Neutral Bay (which she had inherited from her father) to fund the construction of a yacht, known as the Pacific Belle. The boat was ready to sail by 1981. For about the next 20 years, Rupert Burge and the plaintiff spent much of their time sailing around various parts of the world on the Pacific Belle. They stayed in various places. Throughout that period they would regularly visit their children and their families.

14 It seems that during a visit to Melbourne in 1983 (where the parents of both Rupert Burge and the plaintiff lived), Rupert Burge made the will dated 15 March 1983 ("the 1983 will"). As noted earlier, the plaintiff was named sole executrix and, provided she survived her husband by a month, she was also the sole beneficiary.

15 The 1983 will, which was apparently prepared by Braham McLaughlin & Co, solicitors of Toorak, consists of four typewritten pages and a cover page, bound together. Each of the four typewritten pages was signed by Rupert Burge as well as by the two attesting witnesses, M Szujesny (a secretary from South Yarra) and another, whose signature is indecipherable, but was evidently a solicitor of Toorak.

16 After Rupert Burge's death, the 1983 will was found in an envelope together with some other documents. The envelope appears to have been posted on 21 March 1983 by Braham McLaughlin & Co to Mr C M Burge (the defendant) to an address in Canberra which was apparently the defendant's address at that time. The circumstance in which the 1983 will and other documents were found following Rupert Burge's death are dealt with in more detail below. However, it should be noted here that the front of the envelope contains some handwriting of Rupert Burge, including the following:

(1) in red ink, the word "WILLS", with the first two letters overwritten in black ink;

(2) in blue ink, "Latest Will remains 1983 will enclosed 1 June 1994 R W Burge"; and

(3) in black ink, "14 December 1999. [...] transfer of assets to Conrad and Susanne has NOT been effected R W Burge." There are some further words in black ink that are impossible to read with any confidence.

17 As will become apparent, some of the handwriting on the envelope relates to another document that was created by Rupert Burge in 1994, and amended by him in 1999. That document was kept in another envelope which had been placed inside the envelope marked "WILLS".

18 By the time the 1983 will was made, both children were in their thirties. The defendant lived in Canberra and Susanne lived in Phoenix, Arizona.

19 The Mosman home was sold in 1994 for $2.5 million. The net proceeds of the sale (of about $2.2 million) were split equally between Rupert Burge and the plaintiff. They each invested in excess of $1 million in separate accounts held with BNP in Geneva.

20 On 5 October 1994, Rupert Burge composed a handwritten letter, apparently whilst in Phoenix, Arizona, in the following terms:

"Dear Anne,

DISPOSITION OF FAMILY ASSETS

Please excuse the blunt (necessarily so) examination of my family resources.

At some $US X million, plus boat and miscellaneous personal assets, in the well organised and liquid state achieved offering income - assured by bonds, etc - above $2 thousand per week, you are evidently comfortably set up.

Conrad and Susanne are already in their "40s": whilst your good health promises that you will live into a happy and sturdy old age, it seems most rational and fair in these circumstances to give the two offspring some access to my final resources promptly in the event of my unfortunate early demise - should this occur.

THEREFORE:

Will you please arrange in the event of my death, using your "Power of Attorney" to distribute all of my legal assets held by BNP Geneva as follows:

33.3% thereof to yourself, and the same proportion to Conrad, and to Susanne, but both the children are asked to hold this capital ready to assist your future position, should this prove necessary during your lifetime!

With my love,

Rupert W Burge"

21 It appears that the letter was never sent to or given to the plaintiff. It is clear, however, that Rupert Burge retained possession of it (or at least a copy of it).

22 In about mid-1999, Rupert Burge suffered a heart attack. He underwent bypass surgery in early 2000. In the meantime, he made some handwritten additions and amendments to the 5 October 1994 letter (or a copy of it). Beneath the date 5 October 1994, he wrote "As amended 27 Nov, '99, 14 Dec, '99." He made other additions and amendments as follows:

(1) he wrote "2.5" above "$US X million", and initialled the change;

(2) he wrote "4" above "$2 thousand", crossed out the "2", and initialled the change;

(3) he crossed out the word "some" where it appeared before the words "access to my financial resources" and initialled the change; and

(4) he made various changes (each of which was initialled) to the final paragraph of the letter so that it henceforth read:

"THEREFORE:

I have arranged, prior to my death to distribute all of my assets held by BNP Geneva as follows:

50 per cent thereof to Conrad; and 50% to Susanne, but both children are asked to hold this capital ready to assist your future position, should this prove necessary during your lifetime!"

23 Again, it appears that the letter in its altered form was never sent to or given to the plaintiff. Rupert Burge retained possession of it (or a copy of it). What appears to be a copy of the letter, as amended, was found in an envelope after his death. This envelope bears the mark of a resort and golf club in Scottsdale, Arizona. The name "M/S Anne Burge" and an address in Phoenix, Arizona, which was Susanne's address, is written in handwriting on the envelope. Other handwriting shows Rupert Burge to be the "sender", but it appears that the letter was never sent to either the plaintiff or to Susanne. Susanne thought that the envelope may have been sealed when she found it. The envelope also bears the handwritten note:

"Addendum to will attached hereto R W Burge 14 Dec, 99."

24 As already noted, this envelope was itself found inside the envelope marked "WILLS" that contained the 1983 will.

25 Rupert Burge and the plaintiff continued to sail Pacific Belle until about 2003. They did not sail it after that. Rupert Burge was by then 83 years of age, and the plaintiff about 80. The boat was left in Florida for two or three years until it was transported to Phoenix, and later to Seattle, and then to Vancouver. In 2009 the boat was shipped to Brisbane.

26 In about late 2005 or early 2006, when the boat was in Phoenix, arrangements were made for Susanne to oversee the carrying out of certain repairs. This project did not go well, or at least did not meet the expectations of Rupert Burge. The issue became a source of considerable tension in the relationship between Susanne and her father. There is no doubt that he became very angry with her over the matter. This is illustrated by the terms of a letter he composed in May 2007. The letter remained on his computer and was never sent, but it nonetheless reveals that well over a year after the repairs were carried out, Rupert Burge remained very upset with his daughter. Their relationship improved in time.

27 After the plaintiff and her husband ceased their sailing, they lived for a number of years in Scottsdale, Arizona. In 2004, they purchased the Scottsdale townhouse (in which the plaintiff now lives), and lived there until moving back to Sydney to live in 2011. Whilst in Sydney they rented a small unit in the same building in which the defendant lives with his family in Dee Why. The couple remained living there until Rupert's death in January 2013.

28 The 2007 document was created on 10 June 2007 when Rupert Burge made handwritten alterations to an unexecuted copy of the will that had been prepared for him in 1983 by Braham McLaughlin & Co. Changes were made to clauses 2, 4 and 6. Rupert Burge placed his signature and/or his initials near to the changes he made.

29 Clause 2 concerns the identity of the executor in the event that the plaintiff predeceased him or died within one month of his death. Susanne's name and address was crossed out and the defendant's address in Dee Why was added.

30 Clause 4 contains a gift of the entirety of the estate (after payment of debts). The primary recipient was changed from the plaintiff to the defendant.

31 Clause 6 concerns the appointment of a guardian of infant children. It appears that Rupert Burge changed the guardian from the plaintiff to the defendant, before striking through the clause and writing "CANCELLED AS INAPPLICABLE".

32 At the foot of the third page of the document, Rupert Burge inserted the date 10 June and changed "one thousand nine hundred an eighty three" to "two thousand and seven". The date 10 June 2007 was also written in the space provided on the cover page of the document. Rupert Burge signed his name on the fourth page of the document next to the attestation clause.

33 Taking the handwritten changes into account, the 2007 document is relevantly in the following terms:

"I, RUPERT WEBB BURGE of 56 Bay St, Beauty Point in the State of New South Wales, Investment Banker hereby rescind and revoke all former testamentary dispositions made by me and declare this to be my last Will and Testament.

1 I APPOINT my dear wife ANNE BELLE BURGE to be the sole Executrix and Trustee of this my Will.

2 SHOULD my said wife predecease me or die within one calendar month of my death then I APPOINT my son CONRAD MICHAEL BURGE of 33, 98 Dee Why Pde, Dee Why 2099 New South Wales to be my Executor and Trustee of this my Will.

3 MY Executrix and Trustee or my Executors and Trustees whether original or substituted are hereby referred to in this my Will as "My Trustees".

4 I GIVE DEVISE AND BEQUEATH unto my Trustees all my estate both real and personal whatsoever and wheresoever situate UPON TRUST to sell call in and convert into money such part or parts thereof shall not consist of money and after payment thereout of all my just debts funeral and testamentary expenses including all State death duties or Federal estate duties and other duties of whatsoever kind or nature payable upon or by reason of my death to hold the same UPON TRUST for my dear son Conrad M Burge if HE shall survive me and live for a period of one calendar month after my death or if he shall not survive me or surviving me shall not live for a period of one calendar month after the date of my death then UPON TRUST for such of my children as shall survive me and attain the age of 21 years and if more than one in equal shares as tenants in common [...]

IN WITNESS WHEREOF I have hereunto set my hand to this and the preceding pages of this my Will this 10 day of June two thousand and seven.

SIGNED by the said RUPERT M BURGE as and for his last Will and Testament in the presence of us both present at the same time who in his presence at his request and in the site and presence of each other have hereunto subscribed our names as attesting witnesses:-"

34 Rupert Burge suffered a stroke on 3 January 2013, and was admitted to the Royal North Shore Hospital. He was unable to communicate to any great extent although the plaintiff deposed that he said to the defendant:

"Look after your mother."

35 Susanne arrived in Sydney on the morning of 5 January 2013. Her father died later that day. The day after her father's death, she started looking through his papers.

36 In the dining and living area of the unit in which her parents had lived, there was a desk placed up against floor to ceiling glass windows, which gave a person sitting at the desk a view of the ocean. About three metres behind the desk there was a bookshelf about one metre wide and two metres high. According to Susanne, it held some books and a few cardboard accordion files, although in cross-examination she said that there was only one such file in the bookcase. That file (exhibit 1), has cardboard dividers marked with the letters of the alphabet. Amongst the handwriting on the "W" divider, the word "WILL" was written.

37 Susanne deposed that his files contained, in an apparently organised fashion, "bank statements, bills, letters and the like". She says that within a short time, she found an envelope in the cardboard file, which envelope contained a will completed in the 1960s, the 1983 will, and the envelope containing the 5 October 1994 letter as amended in 1999. She did not say where in the file she found the envelope.

38 Susanne showed the two wills and the letter to her mother and to her brother. The plaintiff deposed that the 1960s will also named her as the sole beneficiary. This will was not adduced in evidence, and the evidence was unclear as to its whereabouts.

39 About a week after her father's death, Susanne conducted a further search of her father's papers. She says that she did so because her brother had suggested that there might be another will. The defendant denies that he said such words. In any event, Susanne again searched the bookshelf and also looked behind the desk. She gave evidence that she pulled the desk out and found another cardboard accordion file sitting, not on the floor, but on a flat wooden cross-piece in a space (or "cubby" as she described it) behind a desk drawer. The location can be seen most clearly in the photograph which became exhibit L. She described the file "as a very small accordion file of pockets". She found the 2007 document inside the file. She was unsure whether the document was inside an envelope. She thought that there may have been a few other bits and pieces of paper in the file. Neither the file itself (or any other of its contents), nor any envelope, was adduced in evidence. Again, the evidence was unclear as to the whereabouts of any such items.

40 Susanne was cross-examined in some detail about the searches she carried out. Her version of events was tested in various respects, but there was no challenge to the essence of her testimony, including that the 2007 document was found behind the desk several days after the 1983 will, and other documents including the 1960s will, were found in the accordion file on the bookshelf. I accept her evidence. She appeared to answer the questions put to her as accurately as her recollection would permit. There is a suggestion in one of the defendant's affidavits that all the documents were found by his sister on the one occasion. It is likely, in my view, that the defendant was mistaken in that respect.

The submissions of the parties

41 The parties provided detailed written submissions, which were elaborated upon in final addresses. The main contentions are summarised below.

42 Mr P Blackburn-Hart of Senior Counsel, who appeared for the defendant, submitted that the form and content of the 2007 document itself tells strongly in favour of a conclusion that Rupert Burge intended the document to form his will. I was referred to the judgment of Mason P in Pahlow-Silady v Siladi (Court of Appeal (NSW), 22 April 1997, unrep), where his Honour stated:

"But it does not follow that some evidence (including the form of the executed document itself) may not perform a double function. That evidence may demonstrate not only that the document purports to embody the testamentary intentions of the deceased, but also that the deceased intended the document to constitute his or her will. Obviously the signing of a document which is complete on its face may provide clear evidence that will satisfy the second and third requirements."

43 Mr Blackburn-Hart emphasised that it was evident that Rupert Burge carefully went through the printed words of the document, making amendments as seen to be appropriate, and taking the trouble to place his signature or initials near the changes. Moreover, he dated the document, and then signed it on the final page. It was put that it was inconceivable he would have taken those steps unless he intended the document to be his will, and that there are no other rational explanations for his conduct. It was contended that Rupert Burge clearly attached considerable importance to the document, and this was underscored by the fact that he retained possession of it, and took it with him when he and the plaintiff moved to Australia in 2011.

44 Mr Blackburn-Hart also submitted that an intention to make a will in the terms of the 2007 document was explicable, given that Rupert Burge believed, rightly or wrongly, that the plaintiff was comfortably set up and had been well provided for. Moreover, making the defendant the only primary beneficiary to the exclusion of Susanne was explicable in circumstances where Rupert Burge was conscious that his son, who was then almost 57 years of age, with two young children, had experienced significant health issues and some financial strains, whereas Susanne, with whom he was very angry at the time, was in relatively comfortable financial circumstances.

45 It was also submitted that the letter written in 1994, and amended in 1999, was itself testamentary in character (although not sought to be proved as a will under s 8 of the Succession Act) and showed that Rupert Burge considered that his children rather than the plaintiff ought be his beneficiaries.

46 Mr Blackburn-Hart submitted that although the 2007 document was not found with the 1983 will in the envelope bearing the word "WILLS", it could not be said that the document was "hidden", and the evidence was not clear as to how it got to its location behind the desk. He pointed out that its resting place was in fact visible through the floor to ceiling glass window to a person who was walking outside the unit up to the front door, provided the curtains were open. He also pointed to the lack of evidence of the 1960s will and other contents of the accordion file, the file in which the 2007 document was found, the other contents of that file and the contents of the desk drawer. He submitted that inferences should not be drawn in favour of the plaintiff in those circumstances.

47 Finally, Mr Blackburn-Hart submitted that even if it was inferred that Rupert Burge was aware of the formal requirements for a valid will, that was only one factor, and one that should not be considered in isolation (see In the Estate of Kathleen Torr [2005] SASC 49 at [37]-[38]; Fast v Rockman [2013] VSC 18 at [112]-[113]).

48 Mr V F Kerr of Counsel, who appeared for the plaintiff, submitted that the evidence failed to establish, to the requisite standard of satisfaction, that Rupert Burge intended, by signing the 2007 document, that it operate as his will. He relied upon a number of factors in support of that submission, which may be summarised as follows:

(1) that having executed formal wills in the 1960s and in 1983, Rupert Burge can be taken to have been aware of the formal requirements for execution of a valid will, including the need for two witnesses (see Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900 at [43]);

(2) that, as an educated and meticulous man, it is unlikely that he would have trusted the administration of his substantial property to a purely informal document (see Estate of Ivan John Gonda [2012] NSWSC 357 at [6]-[7]);

(3) that despite being 87 years of age in June 2007, there was no reason why he could not have made arrangements for a will to be executed in accordance with the necessary formalities, and he had ample time to do so before his death;

(4) that he retained the formally prepared and executed will of 15 March 1983 and kept it in an envelope bearing the word "WILLS" which was placed in a location where it would be easily found after his death, whereas the 2007 document, even if not "hidden", was kept separately and not in an accessible location (see Williams v Public Trustee of New South Wales (No.2) [2007] NSWSC 974 at [85]); and

(5) that it is highly unlikely that he would have wanted to take the step of entirely disinheriting the plaintiff, with whom he had been happily married for more than 58 years, without legal advice and without telling anybody about it, or providing any explanation for it.

49 Mr Kerr submitted that it would be wrong to place too much weight upon Rupert Burge's signature upon the 2007 document because the writing on the two envelopes, and the letter written in 1994 and amended in 1999, showed that he was in the habit of dating and signing documents, even when they were not truly formal documents of legal significance.

50 Mr Kerr took issue with the suggestion that in 2007 Rupert Burge was aware that whereas the plaintiff and Susanne were in comfortable financial circumstances, the defendant was not. He submitted that there was little or no evidence to establish those matters. He also put that the rift with Susanne provided no justification to disinherit the plaintiff.

51 Mr Kerr also took issue with the suggestion that the letter written in 1994 and amended in 1999 was testamentary in character. He submitted that in its original form it was really a direction to the plaintiff as his attorney, and in its amended form concerned an arrangement that was to be implemented while he was still living. Moreover, as the handwriting on the "WILLS" envelope indicated, the foreshadowed transfer of assets was never effected. Mr Kerr also put that in any event the terms of the letter suggested that the plaintiff (despite being seen as "comfortably set up") was still regarded by her husband as one who may need financial assistance in her old age.

Did Rupert Burge intend the 2007 document to form his will?

52 The form and content of the 2007 document provides considerable support for the view that Rupert Burge intended it to form his will. The document was signed and dated by Rupert Burge on 10 June 2007. The document was based upon a draft of a professionally prepared will. The various changes made to the text were signed or at least initialled by Rupert Burge, indicating that he took some care in that respect. By its opening sentence, all former testamentary dispositions were revoked and the document was declared to be Rupert Burge's last will and testament. The attestation clause of the 2007 document (next to which Rupert Burge placed his signature), provided that it was signed by Rupert Burge "as and for his last Will and Testament".

53 It should be noted, however, that no change was made to the opening sentence of the document even though it includes an address that was many years out of date. This suggests that Rupert Burge might not have given close attention to at least that part of the document. Moreover, the placing of the signature next to an attestation clause that clearly refers to signing in the presence of two attesting witnesses tends to suggest that Rupert Burge either signed the document in the knowledge that it provided for that to be done in the presence of witnesses, or did so without closely reading the clause.

54 The form and content of the 2007 document is undoubtedly a factor of some significance. However, as is the case with all circumstances that relevantly bear upon the question of intention, it is a factor which must be considered and weighed in the light of all other relevant circumstances. In the present case, those circumstances include the various matters dealt with below.

55 I infer that Rupert Burge, having previously executed two formal wills, would have been aware in June 2007 of the formal requirements for execution of a valid will, including the need for two attesting witnesses. Had he read the attestation clause with care when he made the 2007 document, that understanding would have been reinforced. It is not possible to reach a reasoned conclusion as to whether, in fact, he so read the clause.

56 Neither the terms of the 1994 letter, including as amended in 1999, nor the evidence about how Rupert Burge regarded that document, seems to me to establish that he thought that a document not executed in accordance with the required formalities could itself operate as a will. In its 1994 form, the letter is couched in terms of a request to the plaintiff, not as his executor, but as his attorney, to distribute certain assets after his death in a particular way. In its 1999 form, the letter refers to an arrangement made by Rupert Burge "prior to my death" to distribute those assets in a particular way. The words "prior to my death" could refer to when the arrangement was made rather than when the distribution was to take place, but in any event, the letter was not, at least at that stage, of a testamentary character. It is true that Rupert Burge described the letter in December 1999 as "an addendum to will" but I do not think that it should be concluded that, by using that description, Rupert Burge thought that the letter itself operated as a will or as an amendment to a will. The description is consistent with the letter being regarded as a document that, in addition to his will, concerned how his property was to be dealt with.

57 In my view, it is unlikely that Rupert Burge, being aware of the need for two attesting witnesses, would have considered that the 2007 document, signed by himself alone, was itself capable of operating as a valid will. Moreover, there is no evidence to suggest that in June 2007 (or for many years thereafter) Rupert Burge would have had any difficulty in making arrangements for a new will to be made that complied with the formal requirements of a valid will.

58 It is also relevant that the 2007 document was not, it seems, kept with the 1983 will and other documents including the 1960s will, in the envelope marked "WILLS". I do not accept (and the plaintiff did not ultimately submit), that the 2007 document was deliberately hidden by Rupert Burge so that it would not be easily found. However, the likelihood is that had he intended the 2007 document to operate as his will, he would have taken the trouble to place it with those other documents in the file that was ultimately kept on the bookshelf in the unit at Dee Why. He had placed the 1983 will with the 1960s will even though the latter was revoked by the former.

59 It is correct, as Mr Blackburn-Hart submitted, that Rupert Burge retained the 2007 document and brought it with him to Australia in 2011. That might suggest that he regarded the document as having some significance. Against that, however, is the fact that Rupert Burge on occasions retained documents in his possession even if they were of no continuing importance. The 1960s will is an example. The draft of the 1983 will, which he used as the template for the 2007 document, is another. In these circumstances, I do not think that too much weight can be placed upon Rupert Burge's retention of the 2007 document. Of course, it can be said with similar force that little weight can be placed upon Rupert Burge's retention of the 1983 will. However, it is not so much the bare fact of retention of that document that is of significance; rather, it is the apparent keeping, over many years, of a group of documents within an envelope marked "WILLS". To my mind, that shows that Rupert Burge was concerned to maintain a situation of some order in relation to such documents.

60 The submissions of both parties focused to some extent upon whether it could be considered likely that Rupert Burge would have wanted to make a will in terms of the 2007 document. As noted earlier, the defendant submitted that the making of a will in those terms was explicable in circumstances where Rupert Burge thought the plaintiff well provided for, was conscious of the defendant's relevantly less secure financial position, and was angry with Susanne about the repairs to Pacific Belle. The plaintiff, on the other hand, submitted that it was most unlikely that Rupert Burge would have wanted to entirely disinherit his wife of many years, with whom he remained on affectionate terms (as shown, for example, by his letter to her on the occasion of their 60th wedding anniversary in December 2008), particularly without providing any explanation for such a step.

61 Dealing with these contentions is difficult in circumstances where, as accepted by both parties, Rupert Burge was a very private man, not one to discuss his testamentary acts or intentions. He certainly never mentioned the 2007 document (or the possibility of a will to that effect) to anyone. There was some evidence that Susanne had on occasions asked her father whether he had a will, and his various replies included that he didn't have a will, and that he had a will which left the estate to the children equally. It is not possible to draw any conclusions from that evidence.

62 I accept that a rationale for the making of a will in terms of the 2007 document can be discerned from the evidence. Although the evidence does not in my view establish that Rupert Burge had any detailed knowledge of his son's financial position in June 2007, I would at least infer from the evidence of their close relationship, that he was then aware that his 56 year old son had experienced serious health issues, and was working hard to provide for his family, including two very young children. At the same time, Rupert Burge was clearly angry with Susanne. It appears that, at least during the 1990s, Rupert Burge considered the plaintiff to be comfortably set up. There was no evidence of any significant change in her financial position between then and June 2007, and Rupert Burge may well have maintained his view of her circumstances. Of course, as pointed out by Mr Kerr, Rupert Burge also considered that the plaintiff might need financial assistance in her old age.

63 Whatever the merits or strength of the rationale for a will in the terms of the 2007 document, there is no doubt that Rupert Burge contemplated the making of such a will. That much is demonstrated by his actions in bringing the 2007 document into existence. The critical question, however, is whether Rupert Burge intended that document to form his will.

64 I regard this as a borderline case. Ultimately, having considered the totality of the evidence and the various matters raised by the parties in submissions, I am not satisfied that Rupert Burge intended the 2007 document to form his will. First, for the reasons given earlier, I consider it unlikely that Rupert Burge, being aware of the need for two attesting witnesses, would have considered that the 2007 document was itself capable of operating as a valid will. Secondly, had Rupert Burge intended the 2007 document to operate as his will, it is likely that he would have placed it with the 1983 will and the other documents in the envelope marked "WILLS". Thirdly, even if he considered his wife to be financially comfortable, it would be a big step to entirely disinherit her, without explanation.

65 As explained earlier, the form and content of the 2007 document provides considerable support for the view that Rupert Burge intended it to form his will. However, I am unable to accept the defendant's submission that it is inconceivable that Rupert Burge would have carefully amended the draft 1983 will, and then initialled, dated and signed the document, unless he intended it to be his will. When considered in the light of all relevant circumstances, including the three matters referred to in the preceding paragraph, I am not persuaded that Rupert Burge had that intention. To paraphrase the words of Mahoney JA in Masters (supra) at 462, whilst the 2007 document on its face contemplates legal effect, there are circumstances that lead to the contrary conclusion, namely, that the document was not intended to have present operation as a will. Rupert Burge plainly contemplated making a will in terms of the 2007 document but I am not satisfied on the evidence that he went so far as to intend that the document actually form, and therefore operate as, his will, including by revoking any previous will.

Conclusion

66 It follows from the above that the defendant's Amended Cross Claim must be dismissed. Further, in circumstances where all interested persons are either parties to the suit or (in the case of Susan Rothwell) have participated in it, and there is no question as to the due execution of the 1983 will, the only issue being whether it was revoked by the 2007 document, a grant of probate in solemn form should be made in favour of the plaintiff in respect of the 1983 will (see Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [236]-[249] per Lindsay J).

67 The litigation has essentially been brought by the state of the papers left by Rupert Burge. That reality is recognised in the affidavit of executor sworn by the plaintiff, in which she refers to the existence of the 2007 document as a circumstance that raises doubt as to her entitlement to a grant in respect of the 1983 will. In these circumstances, it seems to me that, prima facie, the appropriate order for costs is that the costs of all parties be borne out of the estate on an indemnity basis. The Court will make that order for costs unless any party, within seven days, notifies my Associate that some other order for costs is sought. In that event, directions will be made for the making of brief written submissions.

68 The Court orders:

(1) That the Amended Cross Claim be dismissed.

(2) That probate of the will of the late Rupert Webb Burge dated 15 March 1983 be granted in solemn form to Anne Belle Burge.

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Decision last updated: 11 December 2014