Relevant Facts
12Rupert 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.
13Rupert 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.
14It 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.
15The 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.
16After 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.
17As 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".
18By the time the 1983 will was made, both children were in their thirties. The defendant lived in Canberra and Susanne lived in Phoenix, Arizona.
19The 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.
20On 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 $2 thousand per week, you are evidently comfortably set up.
Conrad and Susanne are already in their "40s": whilst your good health promises that you will live into a happy and sturdy old age, it seems most rational and fair in these circumstances to give the two offspring some access to my final resources promptly in the event of my unfortunate early demise - should this occur.
THEREFORE:
Will you please arrange in the event of my death, using your "Power of Attorney" to distribute all of my legal assets held by BNP Geneva as follows:
33.3% thereof to yourself, and the same proportion to Conrad, and to Susanne, but both the children are asked to hold this capital ready to assist your future position, should this prove necessary during your lifetime!
With my love,
Rupert W Burge"
21It appears that the letter was never sent to or given to the plaintiff. It is clear, however, that Rupert Burge retained possession of it (or at least a copy of it).
22In about mid-1999, Rupert Burge suffered a heart attack. He underwent bypass surgery in early 2000. In the meantime, he made some handwritten additions and amendments to the 5 October 1994 letter (or a copy of it). Beneath the date 5 October 1994, he wrote "As amended 27 Nov, '99, 14 Dec, '99." He made other additions and amendments as follows:
(1)he wrote "2.5" above "$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!"
23Again, 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."
24As already noted, this envelope was itself found inside the envelope marked "WILLS" that contained the 1983 will.
25Rupert 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.
26In 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.
27After 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.
28The 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.
29Clause 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.
30Clause 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.
31Clause 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".
32At 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.
33Taking 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:-"
34Rupert 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."
35Susanne 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.
36In 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.
37Susanne 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.
38Susanne 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.
39About 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.
40Susanne 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.