Estate of the late James Sundell

The plaintiff (Joakim Sundell)(‘Kim’) and the second defendant (Anne-Katrine Goulston) are the son and daughter of James Sundell (the deceased). Both parties are beneficiaries under the will, Kim is also an executor. The first defendant (Mr Wooldridge) was a long-time business associate of the deceased and a named executor and beneficiary under the will. The third defendant (Mr Walker) is a director of one of the deceased’s family businesses (Bogasi) and a beneficiary under the will.

By statement of claim filed 23 May 2018, Kim sought an order that probate of the will of the deceased dated 9 November 2010 (the will) be granted without the handwritten annotations to Kim and Mr Wooldridge as executors named in the will.

By cross-claim filed 23 August 2018, Anne-Katrine sought an order that probate of the will be granted with the handwritten amendments pursuant to s 8 of the Succession Act 2006 (NSW), to Kim and Mr Wooldridge as executors named in the will

Mr Wooldridge filed a submitting appearance and did not take an active role in the hearing, aside from being available for cross-examination. Mr Walker provided submissions and was also available for cross-examination.

The deceased died on 22 May 2017.The deceased executed his last will on 9 November 2010. The will was witnessed by Doug Lees and Bridget Reedman.

After execution of the will, the deceased caused handwritten amendments to be made to the will. It is uncontroversial that Mr Wooldridge made these amendments on the instruction of the deceased in February 2011.

The particular clause of the will the subject of dispute was clause 3, the text of which without the handwritten amendments is set out below:

With the handwritten amendments, clause 3 reads as follows:

The amendments have been initialled by the deceased in 4 places. There was no witness signature to the amendments.

There is also a handwritten amendment to clause 7 which is not in dispute. The amendment was made before the will was executed.

At the time of writing his will, the deceased owned two shares in Bogasi. At some point between writing the will and his death, the deceased converted his shareholding into five shares. The shares are of nominal value, being shares in a trustee company, however in effect give control over the family business.

By his will, the deceased appointed as executors, Kim and Mr Wooldridge.

The deceased was born in April 1933 in Sweden. He immigrated to Australia with his family, and he and his brother Thor Gunnar Sundell (Gunnar) worked in their father’s business.

The deceased is survived by his widow Janette Sundell (Janette), currently aged 83.

The deceased and Janette had four children, Kim born 1966, Anita-Jane born 1967 who died at age 3 months, Brett born 1970 and Anne-Katrine born 1972.

It is uncontroversial that Kim and Janette had a difficult relationship.

Over the years the deceased and Gunnar built up a successful family business in various industries including construction, art galleries, fishing, finance and property. The family business is made up of a number of entities, together referred to as the Sundell Group.

Of particular note, is the company referred to in clause 3 of the will, Bogasi. Bogasi was registered in September 1973 and is a trustee company which acts for four trusts. These trusts own and control many companies and properties, and much of the family wealth. Relevantly, Kim, Anne-Katrine and Janette are all beneficiaries under two of the family trusts.

There were initially 2 shares in Bogasi, each with a value of $1, with the deceased and Gunnar each holding one share. Upon Gunnar’s death in 2006, his share was gifted to the deceased.

Kim worked for investment banks and stockbrokers overseas before returning to Australia to work for the Sundell Group in about 1996. Anne-Katrine was also employed by the Sundell Group from time to time.

Kim contends that in about 2008, the deceased ceased active involvement in the Sundell Group although continued to be involved in the major decisions. However, Anne-Katrine states that the deceased continued to be actively involved until 2016.

In February 2008, Kim sent an email to Mr Wooldridge, attaching a document ‘Actions for Bogasi’ which in particular notes for discussion, the “Appointment of 5 trustees” (CB 88). Further in July 2008, Kim sent an email to Mr Wooldridge, copying in the deceased. Of particular note, Kim states “I want to discuss the strength of B class shares versus other B class” (CB 89). This appears to indicate that from as early as 2008 there were discussions about diversifying the shareholdings in Bogasi.

At the time that the will was written in 2010, as well as when the handwritten amendments were written in 2011, the deceased held both shares in Bogasi. There had been no diversification at this time.

During 2010 and 2011, the directors of Bogasi were the deceased, Gunnar’s widow Merle Sundell and Mr Wooldridge.

In late 2010, Kim separated from his wife. Litigation was commenced by Kim in early 2011, his then wife articulated her claim in March 2011 (Ex P2).

It appears that from around this time, the deceased began to take certain actions changing the structure of the family business and the family trusts. Kim alleges that these actions were done in direct response to the family law proceedings. Kim’s case is that he and the deceased engaged in some form of defensive ‘strategy’ with regard to limiting the access of Kim’s wife to property which Kim may hold or have control of in the future. Anne-Katrine claims that the deceased’s true intention was to diversify control of Bogasi, to ensure that no single person could control the various family trusts.

Regardless of the deceased’s or anyone else’s intention, it is clear that the following events occurred.

The deceased caused certain handwritten amendments to be made to his will (the changes as set out at [7]-[8] above). In about February 2011, under the deceased’s instructions, Mr Wooldridge made certain handwritten amendments to clause 3 of the will. The deceased initialled the ‘amended’ version. The amendments were not witnessed.

Also in February 2011, Mr Wooldridge, sent an email to Mr Walker seeking his consent to become a director of Bogasi. Mr Walker responded with a signed ‘consent to act as a director’ form on 21 February 2011 (see Ex D2A and D2B). Mr Walker was not actually made a director until 2013.

Further, there were changes made to several powers of attorney. On 18 May 2011, the deceased executed a Power of Attorney appointing, Janette, Anne-Katrine and Kim as attorneys subject to the condition that two or more of the attorneys must act together. Previously, Kim had been the substitute attorney for the deceased pursuant to the 1994 Power of Attorney. Gunnar had been the primary attorney until 2006. Also on 18 May 2011, Kim, Anne-Katrine and Janette also executed Powers of Attorney appointing each other and the deceased as their attorney, subject to the condition that two or more of the attorneys must act together (see CB109.6; CB 109.12; CB 146.6; CB 146.15).

The family law proceedings were ultimately finalised by Consent Orders in November 2012 (Ex D2).

In April 2013, the deceased caused the issue of three additional shares in Bogasi. The deceased continued to hold all 5 shares in Bogasi (see Ex P4). At this time the deceased also appointed Mr Walker and Mr Stell as directors of Bogasi.

On 6 May 2015, Mr Wooldridge sent the following email to Kim, as the deceased was being admitted to hospital for surgery:

The will with the handwritten amendments was attached to the email (see Ex D1).

On 11 May 2015, Kim responded to the email:

The directors of Bogasi immediately prior to the deceased’s death were Mr Walker, Mr Wooldridge, Mr Stell, Merle Sundell and the deceased. Merle Sundell ceased being a director in July 2017.

The plaintiff filed 6 affidavits in the proceedings, including one affidavit as an executor. The plaintiff also filed two affidavits of service of Peter Baltins (affirmed 26 and 28 June 2018 respectively) and one affidavit of the attesting witness to the 2010 will, Doug Lees sworn 11 September 2018.

Kim states that since 1994, he has been the beneficiary of all the shares in Bogasi in the event that his uncle predeceased his father. He states that he never had a falling out with his father and there was no reason for this change (affidavit of Joakim Sundell, 16 May 2018 [5]).

Kim states that when family law proceedings were commenced, his wife went after all of the companies and assets in the family group, including the assets of his parents. He states his wife sought to prove that he had significant financial resources to improve her outcome in the family law litigation (affidavit of Joakim Sundell, 16 May 2018 [6]). He therefore gave ‘thought to insulating the family’s assets against her claims’ (affidavit of Joakim Sundell, 16 May 2018 [7]). It is in response to these family law proceedings that the handwritten amendments were made. Kim states that he had the following conversation with his father (affidavit of Joakim Sundell, 16 May 2018 [9]; and corrections in the affidavit 9 April 2019):

He later told his father; “I don’t believe the changes will have any legal effect until such time as it is witnessed properly” (affidavit of Joakim Sundell, 3 April 2019 [11]).

He states that after the family law proceedings were settled, he said to his father; “I don’t think you need to get a new will or codicil made as those changes on the will are not effective” (affidavit of Joakim Sundell, 16 May 2018 [13]).

Kim states that he began working for the Sundell Group in 1996 (affidavit of Joakim Sundell, 24 January 2019 [5]). He states that the deceased ceased active involvement in the group around 2008, although they continued to discuss major decisions together (affidavit of Joakim Sundell, 24 January 2019 [7]).

Kim states that he had a number of discussions with the deceased about his 1994 will, the 2008 codicil and the 2010 will (affidavit of Joakim Sundell, 24 January 2019 [11]). He stated that he and the deceased spoke with lawyers about the need for witnesses (T18/3). Kim stated that during the course of business, the deceased when required, would always have documents properly witnessed (T20/11-17). Further, Kim refers to two documents annexed to his affidavit, where the deceased simply ‘initialled’ changes, these documents did not require witnesses (CB 109.27-109.45).

Kim states that he had the following conversation with his father, mother and sister on 11 May 2011, with regards to changing the powers of attorney (affidavit of Joakim Sundell, 15 July 2019):

Kim states that when the deceased was about to have a medical operation in 2015, he had further discussions about the will and continued to believe the amendments had no effect (affidavit of Joakim Sundell, 24 January 2019 [16]).

Kim states that at some time in 2016 or 2017, when the deceased was a resident at Pathways, he had a conversation with the deceased to the following effect (affidavit of Joakim Sundell, 24 January 2019 [17]):

During cross-examination, Kim admitted that the accountant had only found two documents were the deceased had initialled certain changes (T23/37-44). When asked about the business relationship between him and the deceased:

Kim maintained that he did not want to be a director of Bogasi, as he believed that the role was just an administrative one (T29/20-36). He noted that these proceedings had caused him to change his mind, as he now believed that control of the family company was going to be disbursed (T29/45-50).

Kim was further asked about the distribution of the family wealth (T30/29-31/1):

Kim was asked about an affidavit that he had sworn in the Family Court proceedings. In the affidavit he had referred to Mr Walker as a ‘savvy business guy’, however in cross-examination he denied that he thought this was true (T33/39), stating that his view has since changed (T34/23).

Kim admitted that discussions around diversifications of the shareholding in Bogasi had taken place as early as 2008, and further that he believed that diversification was the prudent thing to do (T35/6-21).

Kim was questioned extensively about the ‘scheme’ to protect the family assets (T40/25-42/40):

Kim later stated that the ‘advice’ he had received from the lawyers was verbal (T51/1-13).

Kim was also questioned about when he had become aware that his wife intended to go after all the family assets:

Kim later confirmed that he had been informed verbally through mutual friends that his then wife intended to go after his father’s assets (T45/37; T47/11).

Kim stated he did not believe that putting assets out of his wife’s reach was dishonest (T44/1) or shameful (T53/21). He did confirm that he believed his father to be an honest businessman (T48/2).

Kim was further asked about the alleged conversation where he told the deceased about the need to insulate the family assets. Kim admitted that he hadn’t specified what assets his wife intended to claim, provided details about how he had come to know this, or stated who gave him the advice to ‘insulate’ the assets and accepted his affidavit was partially incomplete (T48/24-50/11).

When asked about the particular ‘scheme’, Kim confirmed that by making the amendments he was inviting his father to participate in a sham transaction (T54/12). When asked about the May 2011 powers of attorney, he confirmed he was now involving Anne-Katrine and Janette in the ‘defensive mechanism’ designed to protect the family assets (T57/38), and that the signing of the powers of attorney was part of the ‘scheme’ to ‘frustrate’ his wife in the family law proceedings (T60/12).

Kim was asked about the effect of the handwritten amendments and confirmed he believed that they would have no legal effect (T64/25). He also said (T64/38-65/2):

Kim was asked whether he knew there was a risk that the amendments could be considered effective and responded that he didn’t because it had not been executed properly (T68/19). He later said (T68/21-33) :

Kim later insisted that Mr Wooldridge knew that the handwritten amendments were never intended to have effect (T75/7-39). Although he concedes that he never indicated in the May 2015 email exchange, that the will was ineffective (T76/34), he contends that he and Mr Wooldridge had verbal conversations to that effect sometime during that same period (T77/40).

Kim confirms that he and the deceased never took any steps to ‘have the will cleaned up’ (T80/1-2).

The first defendant swore one affidavit in the proceedings.

Mr Wooldridge states that he had worked with the deceased for over 25 years and had spoken many times about the deceased’s personal finances, wills, and business interests (affidavit of Mr Wooldridge, 8 August 2018 [5];[8]).

Mr Wooldridge recalls drafting paragraph 7 of the will, prior to it being executed. He recalls stating the following to the deceased (affidavit of Mr Wooldridge, 8 August 2018 [15]):

He states that the handwritten amendment at paragraph 7 was present when the will was executed on 9 November 2010, prior to him making the amendments to paragraph 3 in about February 2011 (affidavit of Mr Wooldridge, 8 August 2018 [16]).

He recalls the following conversation with the deceased on about 16 February 2011 (affidavit of Mr Wooldridge, 8 August 2018 [17]):

Mr Wooldridge states that he believed the ‘current circumstances’ to refer to Kim’s marriage breakdown (affidavit of Mr Wooldridge, 8 August 2018 [17]).

Mr Wooldridge then states that he made each of the handwritten amendments in paragraph 3 in the presence of the deceased. He then saw the deceased initial the changes to the last will (affidavit of Mr Wooldridge, 8 August 2018 [19]­).

Mr Wooldridge, states that shortly after making the handwritten amendments he said to the deceased (affidavit of Mr Wooldridge, 8 August 2018 [21]):

Mr Wooldridge states that he did not recall ever specifically discussing the will with the deceased at any later time (affidavit of Mr Wooldridge, 8 August 2018 [22]).

During cross examination, Mr Wooldridge, confirmed that when he sent the May 2015 letter to Kim, he did not give any thought to whether any part of the will was inoperative or invalid (T90/21). It was not directly put to Mr Wooldridge, that he knew the document was a sham.

He did confirm that he had discussed Kim’s marriage break down and the possible consequences for Bogasi with the deceased on several occasions (T93/1-21). He also confirmed that at the time of the family law litigation, Kim was responsible for the day to day running of the Sundell Group (T93/43) and had a good relationship with the deceased (T93/50). He stated that to the best of his recollection, the deceased had never wanted the family business to be controlled by non-family members (T94/27-40), however confirmed in re-examination (as was stated in Mr Wooldridge’s affidavit to the Family Court), that at no stage had all of the family business been controlled by a single Sundell family member (T95/45-13).

Anne-Katrine Goulston filed three affidavits in these proceedings. She also relied on the two affidavits of Janette Sundell.

Anne-Katrine states that the deceased was actively involved in the family business until 2016 (affidavit of Anne-Katrine Goulston, 20 March 2019 [8]).

She recalls having the following conversation with her father in about mid-2007, after the death of Gunnar Sundell (affidavit of Anne-Katrine Goulston, 30 July 2019 [4]):

Anne-Katrine states that in the course of her employment as a bank manager, she had become aware of the dangers of a person appointing a single person as their attorney (affidavit of Anne-Katrine Goulston, 30 July 2019 [3]).

She states that when she was in Sydney sometime in April/May 2011, she attended a meeting at the Clareville Property where she was residing at the time. She states that the meeting was attended by Janette, Kim, Mr Wooldridge, Dean Stell, herself and the deceased. At that meeting, she, Kim, Janette and the deceased signed enduring powers of attorney in which they each appointed the others to act as our attorneys on the condition that two or more attorney’s must act jointly together to exercise their powers (affidavit of Anne-Katrine Goulston, 30 July 2019 [7]). She states that she understood that the powers of attorney were being executed because of the discussion she had previously had with the deceased as well as because of the age of the deceased and Janette generally (affidavit of Anne-Katrine Goulston, 30 July 2019 [7]).

She further states that the deceased asked her to work at the Sundell Group in about 2013. She states he told her that Kim had been unable to spend a lot of time at the office and they needed someone from the family to be there (affidavit of Anne-Katrine Goulston, 20 March 2019 [13]). She states that when Kim returned to the office, she found him difficult to work for. She reduced her hours and then ceased working at the office altogether in March 2017 (affidavit of Anne-Katrine Goulston, 20 March 2019 [13]).

Anne-Katrine recalls the following conversation the deceased had with Janette in about 2015 in her presence (affidavit of Anne-Katrine Goulston, 19 September 2018 [5]):

She further recalls the following conversation with the deceased and her mother while the deceased was in hospital in 2015 (affidavit of Anne-Katrine Goulston, 19 September 2018 [7]):

She notes she asked Mr Wooldridge to provide a copy of the will, but he said he could not without first speaking to the deceased. She did not end up receiving a copy (affidavit of Anne-Katrine Goulston, 19 September 2018 [7]).

She further recalls the following conversation with Kim while the deceased was still in hospital (affidavit of Anne-Katrine Goulston, 19 September 2018 [8]):

Anne-Katrine recalls the following conversation with the deceased in 2017 (affidavit of Anne-Katrine Goulston, 19 September 2018 [9]):

In cross-examination, Anne-Katrine confirmed that she had never seen the deceased’s will prior to his death(T117/43) and had not discussed who would be in control of the family trusts after he died (T118/18).

Anne-Katrine stated that she only became aware of Kim’s family law dispute sometime in early 2011, and that she had had Christmas with Kim and his family in 2010 (T118/30-50). She later corrected this during the next day of hearing, stating that she had in fact celebrated Christmas with Kim the previous year (T128/19). She states she was not aware of the details of the family law case (T121/2). She confirms that she was not motivated by the family law proceedings to sign the May 2011 power of attorney (T122/4).

Janette Sundell, the widow of the deceased, swore two affidavits in support of the second defendant.

She confirms that she had a difficult relationship with her son Kim (affidavit of Janette Sundell, 19 September 2018 [6];[10]).

She recalls that over time the deceased began to express concerns about Kim’s involvement in the family business. She recalls the deceased said words to the effect of (affidavit of Janette Sundell, 19 September 2018 [11]):

Or:

She states that when she and the deceased bought the unit at Walsh Bay, she said the following to the deceased (affidavit of Janette Sundell, 19 September 2018 [12]):

She states that the deceased agreed with her, and they purchased the unit in their own names.

Janette recalls the meeting in 2011 where she and the deceased signed enduring powers of attorney. She states that she does not recall that it had anything to do with the family law proceedings; rather it was about the fact that herself and the deceased were getting older (affidavit of Janette Sundell, 30 July 2019 [4]-[5]).

She states that sometime prior to 2015, the deceased said words to her to the effect of (affidavit of Janette Sundell, 19 September 2018 [17]):

And further (affidavit of Janette Sundell, 19 September 2018 [17]):

She recalls the following conversations with the deceased (affidavit of Janette Sundell, 19 September 2018 [18]):

Janette states that towards the end of the deceased’s life she became concerned about what would happen to her and the other children after the deceased died, if Kim was in control of the family business. She recalls having the following conversation (affidavit of Janette Sundell, 19 September 2018 [19]):

During cross-examination Janette could not recall specifically when she had had certain conversations with the deceased about Kim’s family law dispute and changing the will (T103/26-104/1). She further couldn’t recall the deceased using the word ‘despotically (T104/49), nor could she recall the specific details surrounding the May 2011 powers of attorney (T108/4-50). She was however clear that she did not sign the power of attorney in response to Kim’s family litigation (T112/14-28; T115/23), rather she “wanted more control over my own destiny” (T112/32), and believed by appointing the deceased, “he would have some say in what was happening with us” (T113/8).

The third defendant filed one affidavit in the proceedings.

Mr Walker recalls that in about October 2009 he had the following conversation with the deceased (affidavit of Mr Walker, 20 September 2018 [6]):

Mr Walker recalls that in about early 2010, the deceased asked him to become a director of Bogasi, he said words to the effect (affidavit of Mr Walker, 20 September 2018 [8]):

Mr Walker prepared a file note recording the details of this conversation, the text of which is set out below (affidavit of Mr Walker, 20 September 2019 [8]; CB 161):

Although not dated, Mr Walker confirmed that the file note was created in 2010 (T100/14).

Mr Walker states he was appointed a director of Bogasi in April 2013 (affidavit of Mr Walker, 20 September 2018 [9]).

In cross-examination, Mr Walker confirmed that the deceased was ‘as honest as they come’ (T98/18). He confirmed that he had spoken with the deceased about a ‘protection mechanism for Kim’ and that Kim was going through a divorce, but not any further details of what a protection mechanism would be (T100/16-24). He stated that he believed ‘the protection mechanism’ was associated with Kim’s family law problems (T101/5).

Section 8 of the Succession Act relevantly provides the circumstances when the Court may dispense with the formal requirements of a will:

Powell JA (with whom Priestly and Stein JJA agreed) considered the equivalent of s 8, s 18A of the Wills, Probate and Administration Act 1898 in Hatsatouris v Hatsatouris [2001] NSWCA 408 (at [56]):

Recently, the principles on the application of s 8 were succinctly set out by Lindsay J in Estate of Moran; Teasel v Hooke [2014] NSWSC 1839 (at [26]-[28]):

In this case, it is clear: “The relevant enquiry is whether the deceased intended that the document in question itself, and not some later iteration of it then within the contemplation of the deceased, would “form” (that is to say “be”) the deceased’s will.” (per Stevenson J in Estate of Irvine; Evans v Gibbs [2015] NSWSC 432 (at [29]).

The plaintiff referred me to Newman v Brinkgreve, Estate of Floris Verzijden [2013] NSWSC 371, in which Hallen J considers assessing the intention behind an informal testamentary document (at [104]-[107]):

I was also referred to NSW Trustee and Guardian v Pittman – Estate of Koltai [2010] NSWSC 501, (at [42]-[44]):

As White J (as His Honour then was) noted in Slack v Rogan & Anor; Palffy v Rogan & Anor (2013) 85 NSWLR 253; [2013] NSWSC 522 (at [51]):

In any case when the Court is called upon to consider the veracity of oral representations as they relate to particular documentary evidence whether contractual or otherwise it is salutary to consider the words of McLelland CJ in Eq (as he then was), in Watson v Foxman (1995) 49 NSWLR 314 (at 319):

Further Hammerschlag J in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 noted (at [94]):

Kim submits that the will should be read without the handwritten amendments, as they were never intended to be legally binding. Rather, the amendments were made in consultation with Kim, as part of a defensive ‘strategy’ aimed at limiting Kim’s wife’s access to the family businesses.

The plaintiff submits that, the second-defendant has the legal and evidentiary onus of proving that the annotations were intended by the deceased to form part of the will (T128/46-49).

The plaintiff notes that the deceased was an experienced and sophisticated businessman who had previously written wills, and understood the relevance of attesting witnesses, and the formal requirements to make alterations to a will (Plf subs [5.23]; [5.25]). Given that there were no witnesses, the Court can be satisfied that the document was not to have immediate operative effect (Plf subs [5.23]). The document was never in fact used in the Family Court, and was only designed to ‘frustrate’ not affect any actual change in ownership or control (Plf supplementary subs [11]-[12]). It is noted that Kim gave evidence that his father knew the document would not have effect until it was witnessed (Plf subs [5.24]). The deceased declined to have lawyers update his will or prepare a codicil (Plf supplementary subs [2]-[4]).

The plaintiff submits that the deceased’s usual practice in relation to contracts and business records was to initial any alteration and then have that alteration witnessed (Plf subs [5.25.4]).

The plaintiff also submits that the changes to the will were done to protect Kim from his wife in the family law proceedings. This is reflected in the affidavit evidence of both Kim and Mr Walker, in particular through the use of ‘appearance’ in Mr Walker’s affidavit (PLf subs [5.25.5]). Mr Wooldridge and Anne-Katrine were both informed by the deceased that Kim’s then wife was after the family assets (Plf supplementary subs [17]-[20]). Mr Wooldridge informed the deceased both of the need for witnesses, as well as that making a codicil or new will would be better than making handwritten amendments (Plf supplementary subs [22]). Kim submits that there is no doubt the testator was motivated to make the amendments to protect the family assets (Plf supplementary subs [20]).

The plaintiff also submits that the deceased would not have passed control of the family business outside the family without discussing those changes (Plf subs [5.25.5]). Kim had been a beneficiary of the shares in the deceased’s previous wills, and there was no reason for this to have changed (Plf supplementary subs [15]).

At the time of the alteration, there were still only 2 shares in Bogasi, meaning that for the alterations to take effect there would be further actions needed. The share structure was ultimately not changed until May 2013 (Plf subs [5.25.5]). Further, upon the creation of additional shares, no shares were actually given to anyone other than the deceased (Plf supplementary subs [9]).

The second-defendant claims that the deceased’s true purpose in creating the handwritten amendments was to diversify control of Bogasi (2nd Def subs [38]).

The second defendant notes that at best, Kim’s case involves Kim and the deceased conspiring to not only mislead Kim’s then wife, but the Family Court of Australia (2nd Def subs [75]). They further note that Kim was the only one privy to this alleged intention of the deceased, and only made this alleged intention known after the deceased’s death (2nd Def subs [76]-[77]).

The second defendant notes that the handwritten amendment to clause 7 of the will was only initialled by the deceased and not the attesting witnesses prior to execution. There is no suggestion that the deceased did not intend to have that amendment to be effective (2nd Def subs [78]).

The second defendant notes that there is no reason to believe Mr Wooldridge’s evidence regarding his conversations with the deceased are unreliable; rather the amendments reflect a considered conversation between the pair (2nd Def subs [79]). The amendments are consistent with the deceased providing comfort to the concerns of his wife in regard to Kim not having control of the entire estate.

Further, it is improbable that the deceased took no steps to ensure that his ‘alleged’ true intention was either formalised by the making of a new will, or even repeated to another third person (2nd Def subs [81]). The deceased never told Mr Woodridge or any other person that the amendments were indeed intended to be a ‘sham’. The Court should not be ready to accept Kim’s assertions that the deceased was prepared to compromise his integrity and risk his reputation by misleading the Family Court (2nd Def subs [82]).

The second defendant submits that Kim was an unsatisfactory witness whose evidence should not be accepted. Kim’s case involves accepting that not only the deceased, but Janette and Anne-Katrine were involved in the ‘scheme’ by entering the powers of attorney, something that Janette and Anne-Katrine deny (2nd Def supplementary subs [6]).The critical conversation that Kim says he had with the deceased prior to making the amendments was significantly embellished in cross-examination with details that were absent from his affidavit material (2nd Def supplementary subs [7]).

There were further issues with Kim’s evidence. He initially denied that he knew there was a risk that the handwritten amendments would be effective, yet later asserted it was unlikely that his wife would get legal advice to that effect (2nd Def supplementary subs [8]). The second defendant submits that much of Kim’s evidence was self-serving or incredible. For example Kim (2nd Def supplementary subs [9]):

The second defendant submits that the suggestion that Kim and the deceased thought that the handwritten changes did not make any difference to the original will, defies credibility (2nd Def subs [83]).

The second defendant notes that Kim, as well as Mr Walker believed that the deceased was an honest man. It is unlikely the deceased would produce a document with the intention of misleading the Family Court, (2nd Def subs [79]; 2nd Def supplementary subs [15]). There is no reason to believe that in making the amendments the deceased did anything other than intend that the changes be valid and effective (2nd Def supplementary subs [10]-[13]). In particular, Kim’s then wife had not made any formal claim at the time of the handwritten amendments (2nd Def supplementary subs [16]). It is unlikely the deceased would initial changes if he thought that they would have no effect (2nd Def subs [79]).

The second defendant further notes that the fact that the deceased would want the shareholding in Bogasi to be diversified is not unusual. In 2008, the deceased had already taken certain steps to diversity the control of Bogasi, and further took subsequent steps after the handwritten amendments were made in 2011 (2nd Def supplementary subs [18]-[21]). Further, Mr Wooldridge gave evidence that at no time during his involvement with the Sundell Group had any significant commercial business or asset been placed solely in the control of a single family member, this position accords with the deceased’s stated intent at the time of his death (2nd Def supplementary subs [23]).

The third defendant submits that each of the plaintiff and the second defendant bear the ultimate onus of proof in their respective cases. However in Anne-Katrine’s case, the evidentiary onus arguably shifts to Kim because if the Court accepts the documents put before it, the Court would arguably be satisfied of the matters set out in s 8. Therefore the issue ultimately turns on whether the Court accepts the plaintiff’s evidence.

The third defendant notes that the evidence of Mr Wooldridge suggests that the deceased intended that the handwritten amendments should operate as part of the will (3rd Def subs [16]). They further note that Mr Wooldridge has no pecuniary interest in the matter and has filed only a submitting appearance. While he does receive a share in Bogasi under the handwritten amendments, that share is worthless as he is not a beneficiary under any of the family trusts (3rd Def subs [18]). Mr Wooldridge’s evidence is broadly supported by the evidence of Janette and Anne-Katrine, however noting that those two witnesses do have an interest in the outcome of the proceedings (3rd Def subs [19]-[21]).

The third defendant submits that the Court would be cautious before accepting Kim’s evidence as to the deceased’s intentions for the following reasons:

The contemporaneous documentary evidence would seem to support Anne-Katrine’s claim. In particular the handwritten amendments were made to the original will and not a copy (3rd Def supplementary subs [15]) Further if the amendments were intended to have no effect, why was Kim still bequeathed one share in Bogasi and why was the name Dean Stell deleted from the will (3rd Def supplementary subs [16]). Around the time the amendments were made, Mr Wooldridge sought Mr Walker’s consent to become a director; the fact that other legally effective transactions were being progressed is inconsistent with the deceased embarking on a sham (3rd Def supplementary subs [17]). In May 2011, the family executed powers of attorney for one another; Kim does not suggest that these were intended to be a sham. The conduct of all these parties engaging in legally-effective transactions is inconsistent with the claim that the deceased had just previously embarked on a sham transaction to protect the family (3rd Def supplementary subs [18]). Further, by Kim’s former wife’s affidavit filed in the family law proceedings in March 2011, it is clear that she had not yet made a claim for all of the family assets and nor had she brought a claim against Bogasi (3rd Def supplementary subs [19]).

It is clear that the family law proceedings had been finalised by November 2012 (as per Consent Orders made in those proceedings), therefore there would be no reason to continue the sham after this point (3rd Def subs [20]). However, it is clear that in May 2015 Mr Wooldridge understood that the handwritten amendments formed part of the will (see the email sent May 2015). On Kim’s case, it makes no rational sense why the deceased would continue to deceive Mr Wooldridge when there was no longer a purpose for the amendments (3rd Def supplementary subs [44]). Further, if the deceased did not intend the handwritten amendments to be effective, it is implausible that after the conclusion of the family law proceedings, he would take active steps to facilitate the splitting of shares in alignment with those handwritten amendments (3rd Def supplementary subs [43]). Both Mr Wooldridge and Kim asked the deceased to update his will, but he declined to do so. This suggests that the deceased intended the will with the amendments to be his last will (3rd Def subs [45]).

Further, there appears to be no contemporaneous documents to assist Kim. There are no notes of the alleged conversations Kim had with the deceased (3rd Def supplementary subs [12]).

There are no other witnesses that support Kim’s case. There is no support from the evidence of Anne-Katrine and Janette. Further Kim states that he believed Mr Wooldridge knew that the amended will was a sham, however this is directly contrary to Mr Wooldridge’s own evidence (3rd Def supplementary subs [22]-[24]).

The third defendant submits that Kim’s explanation for the rationale underpinning the sham lacks coherence (3rd Def supplementary subs [27]). Kim states that he believed the handwritten amendments would be ineffective at law, but then appeared prepared to risk that any lawyer engaged by his then wife would come to the immediate same conclusion that the changes were ineffective (3rd Def supplementary subs [28])

Kim’s contention that a lawyer advised him to embark on this sham is implausible (3rd Def supplementary subs [32]). Further it is unlikely that the steps Kim undertook to ‘insulate’ the trusts for family assets would be effective in any case, as he was at all times still a beneficiary under the family trusts. This would likely be considered at the very least a financial resource and therefore still be taken into account in determining property settlement (3rd Def supplementary subs [33]-[36]).

The issue before me for determination was whether the handwritten annotations should form part of the deceased’s will or whether the will should be read in its unannotated form. This in turn rests on a determination as whether or not the deceased intended that the handwritten amendments should indeed form part of his last will and testament.

The main reason why it is said that the annotation should not form part of the will is because the testator made them in circumstances where it ought to be inferred that he never intended them to be legally binding. This case as put forward by Kim, relevantly depends on me accepting the evidence of Kim as to the various conversations he had with his father.

It is said that around sometime in late 2010, Kim’s former wife had indicated that she would be making a claim for 75% of his assets even though formal proceedings had not yet been commenced in the Family Court. This claim, it was said, would include not only Kim’s assets but the family’s assets. The annotations on the will, the diversification of shares, as well as the May 2011 powers of attorney executed by various family members, were said, by Kim, to be part of a ‘scheme’ to protect the family from his former wife’s claim. Kim alleges at all times that his father was in on the ‘scheme’ and never intended the changes on his will to be binding.

The opposing case is that diversification in shareholders and appointment of other directors was on the horizon, so to speak, and unrelated to the Family Court proceedings, and that therefore the deceased clearly intended a change in the family business structure and the annotations should be included on the will.

As a witness, I found Kim entirely unsatisfactory for numerous reasons. It may be said at the very outset, his case at its very best is unattractive. That is, he cajoled his father, who then willingly participated, into creating a document potentially to be deployed in the Family Court to give impression that Kim was not in control of the family business as it were. That conduct was intended to create a false impression. Further it seems to be part of the case that the appointment of Walker as a director and the execution of new powers of attorney were also part of a plan to frustrate or stonewall Kim’s wife, and in turn, the deceased’s grandchildren.

I do not accept his evidence as to the conversations he purports to have had with his father. They struck me as being implausible and seemed entirely fabricated to be in Kim’s self-interest. His father was it seems an honest man and also had that reputation. For him to have engaged in such blatant and ruthless dishonesty does not sit well with his character and reputation.

There is further too much other material that suggests the opposite of Kim’s claim.

First, it appears from objective and contemporaneous documents that the shareholder diversification was being considered as early as 2008, prior to the commencement of any family law proceedings. Secondly, the diary note of Walker I regard as particularly significant. Although undated, it was confirmed by Walker to have been made sometime during 2010, and it recounts a conversation with the deceased where he speaks of intending to put ‘seven degrees of separation’ between the company and all relevant persons. Although, indeed this document was relied upon by Kim, to me there is nothing about this note that suggests that the ‘appearance’ of independence was meant to be merely cosmetic or token. I believe that the deceased intended to achieve actual independence by appointing those he trusted to exercise their fiduciary obligations in the best interests of the company. Notwithstanding the fact that this was a private, family company, independence is clearly necessary. The deceased was by all accounts a successful and savvy businessman but entirely honest and would have recognised the benefit of these appointments. This may be of particular relevance, for example if it was desirable or necessary to deal with financial institutions.

Further, the other witnesses gave evidence completely contrary to Kim’s case. Generally, I accept their evidence.

Janette, although had difficulties in her recollection and at some points appeared vague and unsure, nonetheless had moments of clarity. In particular, she was adamant that the powers of attorney were not related to Kim’s family law proceedings. I accept her evidence.

I certainly accept the evidence of Anne-Katrine. She struck me as a truthful and thoughtful witness. I note in particular, that the day after her cross-examination she took effort to instruct Counsel that she had made a mistake in her evidence. In an admission that was slightly adverse to her case she corrected that she had in fact had Christmas with Kim in 2009 and not 2010.

I also accept Wooldridge unequivocally. I regard it as extremely significant, that although Kim asserted that Wooldridge was aware of the ‘scheme’ and that the annotations were to have no effect, this was never put to Wooldridge in cross-examination.

I also accept Walker’s evidence, in particular on the diary note as I have already mentioned above. There was no cross-examination on the point that the word ‘appearance’ was meant to be purely cosmetic or to create a certain optic.

Importantly the email exchange between Wooldridge and Kim in May 2015 is crucial in my findings as to the deceased’s intentions. The 6 May email from Wooldridge first attaches the annotated will and describes the document as the deceased’s will in the body of the email. Further, as gleaned from the text, the email was sent just prior to the deceased being admitted for a potentially risky surgery, there is a clear awareness that this could be life threatening. I regard this email as crucial for several reasons. First, it is totally contrary to Kim’s assertion that Wooldridge knew that the annotations were not intended to form part of the will and that the document was only intended as a charade. Secondly, Kim’s response is entirely contrary to his claim that at that date he believed that the document sent was not the deceased’s last will. He makes no attempt to correct Wooldridge or convey that the document was not real. What he doesn’t do, in my view, is tantamount to an admission. Not only did he accept but he proceeded upon the basis that that document was indeed the last will and testament.

Moreover, I am fortified in my view by the deceased’s actions following the settlement of the Family Court proceedings. It is plain that the deceased never tore up, amended, or changed the will after the conclusion of the Family Court Proceedings. There is no evidence that Kim even asked his father to do so. What’s more, in 2013, the deceased initiates the issue of additional shares. Although he did not yet allocate them, this seems to me clear indication that he was readjusting the family companies as to align with the clear intention as conveyed in the amended will.

For the reasons set out above, I reject the plaintiff’s claim and would grant the relief sought by the cross-claim. The defendants, in my view, have on balance and on the totality of the evidence, discharged any relevant onus they bore. I am satisfied the deceased intended his alterations in writing on his will to be regarded as part of his overall testamentary intention. I would therefore find his last will and testament should be regarded as the will with the relevant annotations.

I invite the parties to prepare short minutes to reflect these reasons and will hear the parties on outstanding costs issues should they arise.