Burge v Burge [2014] NSWSC 1772

The plaintiff, Mrs Burge, was the widow of the late Mr Rupert Burge (deceased) who died on 5 January 2013, aged 93. The deceased and the plaintiff had been married for more than 58 years and had two children.

The plaintiff sought an order that probate in solemn form be granted in respect of a will made by the deceased dated 15 March 1983 (1983 Will). The 1983 Will named the plaintiff as the sole executor and beneficiary. There was no question as to the due execution of the 1983 Will.

Mrs Burge commenced the action because of the uncertainty created by a series of notes and letters retained by Mr Burge since 1983. These included a clean copy of the 1983 Will upon which the deceased had subsequently written on about 10 June 2007 (2007 document). Upon the 2007 document the deceased had made the following handwritten alterations which he initialled and/or signed:

  • His daughter, Susanne’s name and address were crossed out and the defendant’s address was added as the executor in the event that the plaintiff predeceased the deceased or died within one month of his death.
  • The sole beneficiary of the estate was changed from the plaintiff to the defendant.
  • The guardian of infant children was changed from plaintiff to the defendant, but then struck through and “CANCELLED AS INAPPLICABLE” inserted.

The deceased had also inserted the date, 10 June 2007, at the foot of the third page of the 2007 document and in the space provided on the cover page of the document. The deceased also signed his name on the fourth page of the document next to the attestation clause. There were no witnesses and he had told nobody about what he had done.

The defendant was Mr Conrad Burge, the son of the plaintiff and the deceased. He commenced a cross-claim claiming that the 2007 document revoked all former testamentary documents and appointed the defendant as sole beneficiary. The defendant sought an order that letters of administration with the will annexed be granted to him in regard to the 2007 document.

The defendant relied on section 8 of the Succession Act 2006 (NSW) (the Act). Section 8 applies to documents or parts of documents that purport to state the testamentary intentions of a deceased person but have not been executed in accordance with the Act.

The critical question in this case was whether the Court was satisfied that the deceased intended the 2007 document to form his will (see s 8(2)(a) of the Act).

The 1983 Will was found by Susanne while looking through the deceased’s papers in his house the day after he died. It was found within an envelope marked “WILLS” in an obvious place on a bookshelf with an earlier will and a letter of wishes composed by the deceased. About a week later the 2007 document was found by Susanne in what she described as a “cubby” hole within the deceased’s desk upon a subsequent search of the deceased’s papers.

Outcome

Justice Darke considered this “as a borderline case”. Ultimately, the Court was not satisfied that the deceased intended the 2007 document to form his will.

The Court ordered that the defendant’s Amended Cross Claim be dismissed and that probate of the will of the late deceased dated 15 March 1983 be granted in solemn form to the plaintiff.

Reasons

The following reasons were given for the decision:

  •  Having had the 1983 Will professionally prepared, the deceased was aware of the requirement for two attesting witnesses. Therefore, the Court considered it unlikely that the deceased would have considered that the 2007 document was itself capable of operating as a valid will.
  • If the deceased had 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”.
  • Even if he considered his wife to be financially comfortable, it would be a big step to entirely disinherit her, without explanation. While the deceased plainly contemplated making a will in terms of the 2007 document the Court was not satisfied on the evidence that he intended that the document form, and operate as, his will, including by revoking any previous will.

While the deceased plainly contemplated making a will in terms of the 2007 document the Court was not satisfied on the evidence that he intended that the document form, and operate as, his will, including by revoking any previous will.

Comment

It is not uncommon in our experience for willmakers to make handwritten alterations on a will. Invariably, the extensive evidence that is required to be put before the court to establish the deceased’s state of mind or intentions is extremely costly. Other professional advisors are encouraged to recommend that clients do not attempt this and have the will redrafted by a legal practitioner.