IN THE ESTATE OF BADGER (DECEASED) - [2021] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF BADGER (DECEASED)
[2021] SASC 25
Judgment of the Honourable Justice Bampton
12 March 2021

EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY
SUCCESSION - ADMINISTRATION OF ESTATE - OTHER MATTERS
Application for advice or directions regarding the proper construction of a will and distribution of the deceased’s estate – where will appointed a sole executor and trustee and by clause 1 gave the whole of the deceased’s estate to the executor to “distribute the same as he shall know to be in accordance with my wishes” – executor died one month after the deceased without having obtained probate – the executor is survived by his widow who is executor of his will and sole beneficiary of his estate – the widow did not obtain a grant of probate in her husband’s estate and did not apply for a grant in the deceased’s estate – the Public Trustee obtained a grant of letters of administration with the will annexed in the deceased’s estate – whether the deceased’s estate was given to the executor beneficially or merely as trustee – if given to the executor as trustee, was the trust a fully secret or half secret trust – if given to the executor as trustee, are the identities of the beneficial objects able to be identified – if the beneficial objects are identified as being the subject of wishes rather than specific gifts, how should the estate be distributed – where the widow of the executor makes application for joinder to make submissions on the Public Trustee’s application for advice or directions.
HELD: The application for joinder is dismissed as the executor’s widow has no interest in the estate – on the proper construction of the will, the deceased gave her estate to the executor as trustee of a half secret trust – the beneficial objects of the trust are identified as the subjects of wishes contained in a letter of expression of wishes – the Public Trustee is advised and directed that she would be justified in distributing the deceased’s estate as proposed in the originating application.
Administration and Probate Act 1919 (SA) s 69; Public Trustee Act 1995 (SA) s 9(1)(h), referred to.
King & Ors v Perpetual Trustee Company Ltd & Ors (1955) 94 CLR 70; Marley v Rawlings [2014] 2 WLR 213; Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 540; Gregory v Hudson (1997) 41 NSWLR 573, applied.
In re Pugh’s Will Trusts; Marten v Pugh & Anor [1967] 1 WLR 1262, discussed.

IN THE ESTATE OF BADGER (DECEASED)
[2021] SASC 25

Testamentary Causes Jurisdiction

BAMPTON J: Lady Edith Maud Badger OAM (“Edith”) died at the age of 100, a widow with no children or grandchildren, on 24 November 2016. She left a will dated 16 July 2012 (“the 2012 will”) which appoints “my friend Richard Burke” her sole executor and trustee and by clause 1 gives the whole of her estate to Richard Burke (“Mr Burke”) to “distribute the same as he shall know to be in accordance with my wishes”.
Mr Burke died on 29 December 2016, just over a month after Edith’s death, without having obtained a grant of probate in Edith’s estate. Mr Burke left a will dated 18 January 1997. He is survived by his widow Carolyn Burke (“Mrs Burke”), who is the executor of his will and sole beneficiary of his estate. Upon Mr Burke’s death, the right to executorship of Edith’s estate passed to his legal personal representative. As discussed later in these reasons, Mrs Burke did not obtain a grant of probate in Mr Burke’s estate and therefore did not obtain the ability to apply for a grant in Edith’s estate. The Public Trustee obtained a grant of letters of administration with the will annexed in Mr Burke’s estate and a grant of letters of administration with the will annexed in Edith’s estate.
The application for advice or directions
The Public Trustee is in doubt as to the proper construction of clause 1 of the 2012 will and the distribution of Edith’s estate. As such, the Public Trustee is obliged, pursuant to s 69 of the Administration and Probate Act 1919 (SA), to make this application for advice or directions.
The Public Trustee’s application for advice or direction (“the Public Trustee’s application”) is supported by affidavits affirmed by her solicitor Mark Peter Jappe (“Mr Jappe”) on 23 July 2020[1] and 12 August 2020.[2] The following were also relied in support of the Public Trustee’s application:
(1)Affidavit of Deborah Ann Woods sworn 6 July 2020[3] who was Edith’s hairdresser and friend;
(2)Affidavit of Sue Giacobbe sworn 7 July 2020[4] who cleaned for and became a friend of Edith;
(3)Affidavit of Geoffrey’s niece, Margaret Silverton[5], sworn 6 July 2020;
(4)Affidavit of Mr Jappe’s secretary, Lorna Watton ,14 August 2020;
(5)Bundle of documents printed from the website “Australian Academy of Science” concerning Geoffrey Badger;[6] and
(6)Bundle of letters from Finlaysons.[7]
[1]     Exhibit A1.
[2]     Exhibit A5.
[3]     Exhibit A2.
[4]     Exhibit A3.
[5]     Exhibit A4.
[6]     Exhibit A6.
[7]     Exhibit A7.
I heard the Public Trustee’s application on 17 August 2020 and reserved my decision. Following the hearing, in response to questions asked by my chambers, Mr Jappe’s affidavit affirmed 16 October 2020 was filed.
Mrs Burke’s application to be joined and heard on the application
On 12 November 2020, Mrs Burke made oral application to be joined to the Public Trustee’s application. She then filed an interlocutory application on 22 February 2021 seeking joinder. Mrs Burke’s application is supported by an affidavit affirmed by her on 11 December 2020 and affidavits sworn by her solicitor, Thomas Lewis Abbott (“Mr Abbott”), on 3 February 2021, 19 February 2021, and 22 February 2021.
Mrs Burke asserted that she has an interest in Edith’s estate and she ought to be joined and permitted to put an alternative construction regarding the 2012 will to that contended for by the Public Trustee as well as making submissions on issues which flow from that alternative construction.
Mrs Burke contended that Edith left her whole estate to Mr Burke beneficially and as the sole beneficiary of Mr Burke’ estate she is entitled to be joined and make submissions on the Public Trustee’s application. Mrs Burke asserted that as Mr Burke’s sole beneficiary she is entitled to the whole of Edith’s estate or at least to share in it. Mrs Burke argued she is entitled to be joined in order that she can produce evidence and make full submissions regarding construction of and distribution under the 2012 will. It was submitted that to determine joinder before she has a chance to do so and to answer questions of construction and distribution in advance of joinder should be rejected.
Mrs Burke deposed in her affidavit affirmed 11 December 2020 that she believes she received a letter from Steven Tarca of the law firm Finlaysons in March or April 2017 “saying something to the effect that the Public Trustee had determined that I should receive Lady Badger’s estate and that the Public Trustee wanted to meet me and speak with me about Richard’s estate”. Mrs Burke further deposed that she was throughout 2017 and 2018 “repeatedly told by the Public Trustee that because Lady Badger had left her entire estate to Richard and because I had allowed Public Trustee to administer that part of Richard’s estate, I would be the recipient of the entirety of Lady Badger’s estate”. Mrs Burke said that she proceeded on the basis that the Public Trustee was acting in her best interests, including in relation to dealing with Edith’s and Mr Burke’s estate. She said that she understood that the Public Trustee was taking these steps so that she could be paid the entirety of Edith’s estate.
Mr Jappe’s affidavits affirmed 8 February 2021 and 10 February 2021 were filed in response to Mrs Burke’s application for joinder.
My ex tempore decision
Following the hearing regarding Mrs Burke’s application for joinder on 25 February 2021, I recorded my decision that, on the proper construction of the 2012 will, Edith’s estate was given to Mr Burke legally as trustee of a half secret trust. I also recorded that clause 1 of the 2012 will creates a half secret trust as it discloses the existence of the trust but not the identities of the beneficial objects. I dismissed Mrs Burke’s application finding she had no interest in the proper construction of the 2012 will or the Public Trustee’s application. These are my reasons and my reasons for determining that the beneficial objects of the half secret trust are identified as the subjects of wishes contained in a letter of expression of wishes (“LOEW”) executed by Edith on 15 August 2008.
Edith’s testamentary documents and the deed packet held by Finlaysons
By way of background I will set out, by reference to the documents obtained from Finlaysons and exhibited to Mr Jappe’s affidavits, Edith’s association with Mr Burke. Having regard to documents obtained from Finlaysons exhibited to Mr Jappe’s affidavit affirmed 23 July 2020, it is clear Edith had a long history of will-making with Finlaysons and Mr Burke. It appears Mr Burke managed Edith’s personal trust account which included managing her money market account, her gifting programme, paying accounts, and providing and arranging “comforts”.
On 11 July 2012, a Finlaysons internal memorandum requested the deposit of the following documents into an existing deed packet number SC000352 for Finlaysons’ client name “Badger, Edith Maud”:[8]
(1)Will of Edith Maud Badger dated 24 November 2005, appointing Steven Alexander Tarca (“Mr Tarca”) and Mr Burke executors.
(2)An Enduring Power of Attorney of Edith Maud Badger dated 17 May 2001, appointing Mr Tarca and Mr Burke donees.
(3)A Letter of Expression of Wishes of Lady Edith Maud Badger dated 15 August 2008.[9]
[8] The deed packet is also referred to by Mr Burke in a letter dated 11 July 2012 as “safe custody packet number 000352”. Mr Tarca refers in a letter dated 11 October 2018 to documents executed by Edith being placed in Finlaysons’ “deed safe”.
[9] Exhibit MPJ4 to the affidavit of Mark Peter Jappe affirmed 23 July 2020 at p 44.
By letter dated 11 July 2012, Mr Burke, “Manager – Private Client Services” with Finlaysons,[10] wrote to Edith on Finlaysons letterhead enclosing “as requested, your safe custody packet number 000352”. Mr Burke asked Edith to “acknowledge receipt of your packet by signing the enclosed Security Acknowledgement Advice...”. The letter bears a stamp with the words “~~Posted~~/Delivered” with the initials “RDB” next to the word “By” and “16/7/12” next to the word “Date”.[11]
[10] Mr Burke described himself as Manager – Private Client Services and Consultant Private Services in correspondence and Estates Manager in the 2012 will. Mrs Burke deposed in her affidavit affirmed on 11 December 2020 that Mr Burke was employed by Finlaysons as a Manager of Wills and Estates.
[11] Exhibit MPJ4 to the affidavit of Mark Peter Jappe affirmed 23 July 2020 at p 44.
The two-page document titled “Finlaysons Security Acknowledgement Advice”[12] is dated 16 July 2012 and is signed on the first page and on the second page above the typed name “Lady Edith Maud Badger”. By reference to the signature on the 2012 will, I infer the signature is Edith’s. I also infer by reference to this document and Mr Burke’s letter dated 11 July 2012 that Mr Burke, whose initials are RDB, delivered the contents of the deed packet to Edith. The Finlaysons Security Acknowledgement Advice appears to be Edith’s acknowledgement that she received the deed packet contents from Finlaysons on 16 July 2012 comprising 23 documents. The Security Acknowledgement Advice includes a description and date for each of the 23 documents deposited in the deed packet.
[12] Exhibit MPJ4 to the affidavit of Mark Peter Jappe affirmed 23 July 2020 at p 42-43.
Item 1 is a will of Edith dated 8 May 1990.
Item 3 is a will of Edith dated 19 September 1990.
Item 10 is a will of Edith dated 15 February 2002 appointing Mr Tarca and Mr Burke executors.
Item 12 is a will of Edith dated 15 October 2003 appointing Mr Tarca and Mr Burke executors.
Item 13 is a will of Edith dated 24 November 2005 appointing Mr Tarca and Mr Burke executors.
Item 14 is a “Letter of Expression of Wishes of Lady Edith Maud Badger” dated 5 May 2007.
Item 16 is an enduring power of attorney of Edith dated 15 May 2001 appointing Mr Tarca and Mr Burke donees.
Item 19 is a will of Edith dated 23 April 2007 appointing Mr Tarca and Mr Burke executors.
Item 20 is a “Letter of Expression of Wishes of Lady Edith Maud Badger” dated 15 August 2008.
Items 13, 19 and 20 are the documents the subject of the 11 July 2012 internal memorandum referred to above.
Mr Tarca’s letters to the Public Trustee
In a letter to the Public Trustee dated 11 October 2018, Mr Tarca referred to the Finlaysons file recording that Edith made a will dated 23 April 2007 (“the 2007 will”) together with a LOEW dated 5 May 2007 and subsequently made a further LOEW dated 15 August 2008. Mr Tarca explained Finlaysons had “an unexecuted copy of the same on our file and that our file and deed safe records disclose that an executed copy of the same was placed in our deed safe but then retrieved by Lady Edith”.
By letter dated 30 January 2019, Mr Tarca wrote to the Public Trustee enclosing “a copy of Lady Badger’s Will dated 23 April 2007, the 2007 Letter of expression of wishes dated 5 May 2007 and 15 August 2008”. Mr Tarca explained in the letter that these documents are Finlaysons’ copies of unexecuted documents. Mr Tarca further explained that the dates given to the documents:[13]
… are taken from the Deed Packet record. Our file does not contain a copy of the executed and dated original documents only the unexecuted version. The executed and dated originals were taken by Lady Edith out of our Deed Packet when she terminated her engagement of Finlaysons in 2012”.
[13] Exhibit A6.
I am satisfied that the 2007 will, the 2007 LOEW, and the 2008 LOEW retrieved from the Finlaysons’ deed packet 000352 and received by Edith on 16 July 2012 when she terminated her engagement of Finlaysons were executed and dated originals.[14]
[14] Exhibit A6.
The letters of expression of wishes
The Finlaysons time costing records and the invoices[15] rendered to Edith suggest that Mr Burke, not Mr Tarca was responsible for the work performed and charged for by Finlaysons. By reference to Mr Jappe’s affidavit affirmed on 23 July 2020,[16] it is recorded on 20 April 2007 that Mr Burke was engaged in “drafting will and letter of expression of wishes” and on 23 April 2007 he attended on Edith “executing will and letter of expression of wishes”. The 2007 will is dated 23 April 2007 and the 2007 LOEW which refers to the 2007 will is dated 5 May 2007.
[15] Exhibit MPJ4 to affidavit of Mark Peter Jappe affirmed 23 July 2020.
[16] At p 58.
On 29 July 2008, it appears Mr Burke recorded a time entry of 1.50 hours for “drafting revision of letter of expression of wishes for Lady Badger”. It appears Mr Burke then recorded a time entry on 15 August 2008 for an attendance on Edith “with comforts and agency matters”. Having regard to Mr Burke’s time entries for 29 July and 15 August 2008 and Mr Tarca’s letters dated 11 October 2018 and 30 January 2019 stating the executed and dated originals of each document contained in the Finlaysons deed packet (which included the 2008 LOEW) were taken by Edith when she terminated her engagement with Finlaysons, I infer the 2008 LOEW was signed during Mr Burke’s attendance on Edith on 15 August 2008.
Each of the 2007 LOEW and 2008 LOEW refer to the 2007 will and commence with the following preamble:
The executors of the Will
of the estate of
Lady Edith Maud Badger Deceased
LETTER OF EXPRESSION OF WISHES
For the help and guidance of my executors and trustees, I have enumerated below the actions I request my executors and trustees take during the administration of the trusts of my will dated the 23^rd day of April 2007. The purposes of my request is not to fetter the discretion given to my executors and trustees but afford them guidance in the way I wish them to exercise their discretion.
It is significant to note that the preamble refers to “the actions I request my executors and trustees take during the administration of the trusts of my will dated 23^rd day of April 2007”. The 2007 will appoints Mr Tarca and Mr Burke executors and trustees. By clause 2, Edith gives the whole of her estate to Mr Tarca and Mr Burke on trust. The 2007 will contains no details of the objects of the trust, but indicates that those details were communicated separately to Mr Tarca and Mr Burke. Those details were communicated in the 2008 LOEW which replaced the 2007 LOEW. The intended trust is a “half secret trust” because Edith has indicated that Mr Tarca and Mr Burke as executors are not to hold her estate beneficially but as trustees by use of the words:
I GIVE the whole of my estate to such of my executors and trustees and I direct them that they shall distribute the same as they shall know to be in accordance with my wishes.
Both the 2007 LOEW and the 2008 LOEW conclude with the following words:
In my desire for privacy it is my express request that my executors and trustees ensure the contents of this my letter of expression of wishes remains confidential at all times.
I note that amongst the documents exhibited and marked MPJ4 to Mr Jappe’s affidavit affirmed on 23 July 2020 are:
(1)A copy email from Mr Burke dated 28 July 2006 bearing what I infer to be a note written by Mr Burke which reads: “Debbie Woods Proceeds sale of apartment L/int in ppty for [unreadable] Sue $30,000 legacy deposit for house”.[17]
(2)The following handwritten words on undated Finlaysons note paper in what I infer to be Mr Burke’s handwriting appears “Scholarship $5000@10 years $100,000 School of Organic Chemistry Adelaide University Chemistry Dept”.[18]
[17] At p 31.
[18] At p 60.
The 2008 LOEW provides at clause 2 for the same personal beneficiaries as the 2007 LOEW and adds provision for an annual scholarship fund of $5,000 to a student of the Chemistry Department of the University of Adelaide for a period of up to 10 years from Edith’s death to be called the “Sir Geoffrey Malcom Badger Memorial Scholarship Gift”. Recalling the file notes apparently made by Mr Burke referred to above, I note the 2008 LOEW includes gifts of Edith’s estate to Debra Woods of $400,000 “to provide for the cost of a dwelling house, apartment or flat” and $30,000 to Sue Giacobbe “to be used as a deposit on a house, apartment or flat”.
The 2008 LOEW at clause 3 provides for the payment out of the residue of Edith’s estate the sum of $5,000 to the Queen Adelaide Club and payments in the discretion of the executors and trustees to named organisations and charities (which includes all the organisations and charities named in the 2007 LOEW).
Are there any other documents?
Mr Jappe deposed in his affidavit affirmed on 23 July 2020 that during a telephone conversation with Mrs Burke on 10 April 2019, Mrs Burke informed him that the only document of Edith’s she had was an enduring power of attorney in favour of Mr Burke. Mrs Burke said that she handed all the documents she had regarding Edith to Finlaysons after Mr Burke’s death and there was no LOEW amongst those documents. Mr Jappe stated that Mrs Burke told him she was aware that someone was hired to clear out Edith’s Eldercare accommodation following her death but does not recall who that was. Mr Jappe deposed that amongst the documents the Public Trustee had provided him with was a document titled “Sir Geoffrey and Lady Edith Badger Memorial Arrangements” (“the Memorial Arrangements document”) apparently signed by Edith and dated 15 February 2002.[19]
[19] Exhibit MPJ1 to affidavit of Mark Peter Jappe affirmed 23 July 2020 at p 18.

Mrs Burke attended Mr Jappe’s office on or about 14 October 2019 and delivered Edith and Geoffrey’s ashes and on that occasion provided a letter written by her dated 14 October 2019, together with a copy of the Memorial Arrangements document and a letter from Edith to Mr and Mrs Burke dated 16 February 2002 regarding the memorial arrangements. Those documents are exhibited to Mr Jappe’s affidavit 23 July 2020 marked “MPJ7”.
Following the hearing on 17 August 2020 in addition to other documentation discussed below, I sought further information from the Public Trustee regarding a power of attorney held by Edith’s residential care facility, Eldercare, at the date of her death. Mr Jappe deposed in an affidavit affirmed 16 October 2020 that he had obtained Edith’s enduring power of attorney from Omega Communities (Eldercare). The power of attorney dated 16 July 2012 appointing Mr Burke as Edith’s donee, is exhibited to Mr Jappe’s affidavit 16 October 2020 and marked “MPJ2”.
The documents executed by Edith on 16 July 2012
The evidence establishes that on the same day Edith collected the contents of the Finlaysons deed packet containing the 2007 will and the 2008 LOEW she:
(1)made the 2012 will;
(2)revoked the enduring power of attorney given by her on 17 May 2001 to Mr Tarca and Mr Burke (Edith’s signature on this document is witnessed by Mr Burke);[20] and
(3)executed a deed of enduring power of attorney appointing Mr Burke, Manager – Private Client Services, her donee which provided “this power to become effective upon the execution of this deed and remain effective notwithstanding that I may suffer any subsequent legal incapacity”.[21] At page 3 of the deed under the heading “Form of Acceptance” the words “I Richard David Burke” appear and the document is signed, I infer, by Mr Burke and dated 16 July 2012.
[20] Exhibit MPJ4 to affidavit of Mark Peter Jappe affirmed 23 July 2020 at p 40.
[21] Exhibit MPJ2 to the affidavit of Mark Peter Jappe affirmed 16 October 2020.
The evidence indicates Edith made the 2012 will privately with Mr Burke on 16 July 2012. I note that at para [26] of her affidavit affirmed on 11 December 2020, Mrs Burke deposed that “I know Richard prepared Lady Badger’s will which she executed on 16 July 2012”. It was argued during submissions on 25 February 2021 on behalf of Mrs Burke that there is no evidence the 2012 will was written by Mr Burke and that the 2007 will was written by Mr Tarca.[22] Finlaysons’ records indicate that Mr Burke drafted the 2007 will and the 2007 LOEW and attended on Edith executing the same.[23]
[22] Transcript of Proceedings, In the Estate of Badger (Deceased) (Supreme Court of South Australia, PROB-20-004304, Bampton J, 25 February 2021) at 24.
[23] Exhibit MPJ4 to the affidavit of Mark Peter Jappe affirmed 23 July 2020 at p 58.
The 2012 Will
The 2012 will, which has no residuary clause provides:
THIS IS THE LAST WILL AND TESTAMENT of me EDITH MAUD BADGER of Apartment […] L’Estrange Street Glenside in the State of South Australia Widow AND I REVOKE all my former testamentary dispositions.
1.I APPOINT my friend RICHARD DAVID BURKE Estates Manager of […] Stirling South Australia my sole executor and trustee and I GIVE the whole of my estate to him that he shall distribute the same as he shall know to be in accordance with my wishes.
2.I DIRECT my executor to pay my debts, funeral and testamentary expenses and any duty or tax payable in consequence of my death from the my estate, with no subsequent appointment between any beneficiaries.
3.I EMPOWER my trustee:
(a) TO SELL, postpone sale, borrow with or without security, lease, accept surrenders of leases, repair, manage, exchange, appropriate in specie, partition or otherwise deal with respect to any part of my estate, for such purpose, at such time or times, on such terms and conditions, and with such determination of value, as my trustee thinks fit.
(b) TO RETAIN any investments held by me at my death AND TO INVEST any part of my estate requiring investment in such existing or future forms of investment and whether a wasting, hazardous or reversionary nature or not, as my trustee from time to time thinks fit, with power to vary or transpose the same.
4.I DIRECT that my remains be cremated and I EXPRESS THE WISH that my ashes and those my late husband, Geoffrey Malcolm Badger be scattered in the valleys and over the cliffs of the Na Pali Coast off the Island of Kauai in the State of Hawaii.
Edith’s precatory wishes regarding her ashes are also detailed in the Memorial Arrangements document. The Memorial Arrangements document records Edith’s wish that following her death, her ashes and those of her late husband Sir Geoffrey Malcolm Badger (“Geoffrey”) be intermingled and conveyed to Hawaii. Once at Hawaii, she wished that the ashes be further intermingled with frangipani and other sweet fragrant flowers of the Hawaiian Islands then scattered in the valleys and over the cliffs of the Na Pali Coast of the Island of Kauai just prior to sunset. It also records Edith’s wish that an amount of $30,000 was to be appropriated from her portfolio of assets and set aside in an interest-bearing account to be named “The Badger Memorial Fund”. The Memorial Arrangements document includes Edith’s wish that Mr Burke and Mrs Burke take the ashes to Hawaii and that their expenses in doing so, including first class airfare and a candle-lit dinner in Edith and Geoffrey’s memory, be funded by monies held in the Fund. The Memorial Arrangements document concludes with the following: “The capital and income of the Fund is a gift to Richard and Carolyn Burke and is made freely and voluntarily and further, is made in anticipation of my death”.
Geoffrey, who died in September 2002, was a Professor of Organic Chemistry at and former Vice Chancellor of the University of Adelaide. He developed a keen interest in maritime navigation in retirement and was especially interested in and edited a book about Captain James Cook. Captain Cook’s landing on the island of Kauai and association with Hawaii may explain Edith’s wish for Geoffrey’s ashes and her ashes to be scattered in the Hawaiian Islands.
Mrs Burke
In Mrs Burke’s letter dated 14 October 2019 handed to Mr Jappe, Mrs Burke stated that Mr Burke decided not to set up the “The Badger Memorial Fund” account because they “regularly visited Hawaii and would take the ashes when [they] went on holiday”. Mrs Burke said in the letter that she needs “the money now because [she has] to make a special trip and will take [her] grandson with [her] to do the driving”. She stated that there is “a lot of driving and island hopping” and that “Edith made it perfectly clear that she only wanted Richard and [her] and [their] daughter and grandson if they wished to be there!! (nobody else!!)”. Mrs Burke stated in the letter that she and her grandson would “fly Qantas business class as always” and that “it will be quite an expensive trip”. Mrs Burke concluded the letter, saying that she is “the only person in the world who knows where to go [and] what to do!! … exactly as discussed”.
Mrs Burke gave evidence during the hearing of the application on 17 August 2020.[24] She said that her husband told her that he gave the 2012 will to Finlaysons before Edith died sometime after “it was done in 2012”.
[24] Mrs Burke did not have legal assistance when she gave evidence. Mrs Burke indicated on 17 August 2020 that she did not wish to seek legal assistance about this matter and said to me “No. I think I’ll [leave] things in your hands”. Transcript of Proceedings, In the Estate of Badger (Deceased) (Supreme Court of South Australia, PROB-20-004304, Bampton J, 17 August 2020) at 3.
Mrs Burke said that Edith had a fall in late 2016, that she had to go to hospital, and that following her discharge Mr Burke assisted her into a nursing home. Mrs Burke said that Edith’s unit in Glenunga was then sold and Mr Burke told her that Edith asked Mr Burke “to sell all her belongings, her furniture etc”. She said that there were papers at Edith’s home before she went to the nursing home and that Mr Burke “took care of them”, but she did not see any of them.
Mrs Burke stated that her husband had not established the bank account and deposited the sum of $30,000 in accordance with the Memorial Arrangements document.
Mrs Burke said that she believed that Edith would want her to honour Edith’s wishes by scattering the ashes as she wished. Mrs Burke said that although she had never travelled to Hawaii with Edith and Geoffrey, she knew exactly where the ashes should be scattered. She said that in carrying out the memorial wishes she would need funding for business class flights to Hawaii, a week’s accommodation, and helicopters flights.
Does Edith have any relatives?
Mr Jappe affirmed in his 12 August 2020 affidavit that, based on the information he had obtained regarding Edith and his own research, he is of the belief that although Edith had no children, has no living siblings, or nieces or nephews, she does have distant relatives who are more likely than not still alive.
Margaret Silverton deposed in her affidavit affirmed 6 July 2020 that she is Geoffrey’s niece and she had visited Edith’s mother and sister at their home in Cheam, Surrey between 1962 and 1964. She stated that neither Edith or her sister had any children. She said that Edith never mentioned having any blood relatives, other than her mother and sister, during the many hundreds of conversations which Mrs Silverton had with her over the years. Ms Silverton stated that it is possible Edith has very distant cousins however she has no knowledge of their existence.
Mrs Silverton also deposed that Edith engaged Mr Burke and Finlaysons to manage her affairs as she suffered macular degeneration and was struggling to read bills and other correspondence and that by that time Geoffrey was too ill to manage his own affairs. Mrs Silverton said that Edith was legally blind by 2012.
Mrs Silverton also stated that Mr Burke had managed her aunt Kathleen’s financial affairs and was co-power of attorney for her aunt with her.
The financial documents provided to the Court following the hearing on 17 August 2020
As it was evident having regard to documents obtained from Finlaysons file by Mr Jappe that Finlaysons had a close involvement in Edith’s financial affairs, I sought further information regarding Edith’s financial affairs following her termination of her engagement of Finlaysons and:
(1)whether it was correct to conclude that there were no financial records available concerning Edith’s estate between July 2012 and the date of her death;
(2)whether the Public Trustee had obtained Edith’s banking records; and
(3)whether there was any record of fees charged by Mr Burke for private financial services following the termination of Finlaysons’ retainer.
In response, Mr Jappe deposed in his affidavit affirmed 16 October 2020 that he obtained statements for four accounts owned by Edith. Mr Jappe explained he reviewed the account statements and noted that in relation to a Complete Access Account ending in 2073 there are:
(1)two transfers of $1,000 to an account ending in 6690 detailed as “RDB Administration”;
(2)transfers of funds ranging from $15 up to $2,500 to an account ending in 8705 and the transactions are detailed as:
(a)RDB Admin;
(b)EMB Cash comforts;
(c)Cash for EMB;
(d)Administration fee;
(e)Comforts;
(f)Admin.
In relation to a NetBank Saver Account ending in 2081, Mr Jappe noted a transfer of $1,500 to an account ending in 8705 detailed as “EMB comforts” and a transfer of $30,000 to an account ending in 8705 detailed as “EMB memorial” on 15 August 2015.
Mr Jappe noted at para [12] of his affidavit that it appears funds were regularly transferred by someone from Edith’s account to another account on account of “comforts”. Mr Jappe referred to his affidavit affirmed 23 July 2020 and, in particular, exhibit MPJ4 to that affidavit which exhibits documents titled “Finlaysons’ Lady Edith Maud Badger Personal Trust Account” which used the terminology “comforts” regularly. Those documents show that Mr Burke described his time-recording units, inter alia, as:
(1)telephone attendance on Lady Badger and arranging comforts;
(2)attendance on Lady Badger providing comforts;
(3)arranging payment of comforts;
(4)process comforts and receipt for Lady Badger; and
(5)attendance on Lady Badger with comforts.
Mr Jappe concluded his affidavit saying he did not know who made the transfers from Edith’s accounts, that the accounts ending in 8705 and 6690 appearing in the bank statements are not accounts belonging to Edith, and he did not otherwise know the identity of the owner of those accounts.
The administration of Edith’s estate
Following Edith’s death, it appears Mr Burke sent an email to Finlaysons on 24 November 2016 asking that a file be opened.[25] He stated that he was the client and the matter was a probate application in Edith’s estate. As stated above, Mr Burke died before obtaining probate in Edith’s estate.
[25] Exhibit TA3 to the affidavit of Thomas Lewis Abbott sworn 19 February 2021.
It is asserted in a letter from Mr Tarca to the Public Trustee dated 1 March 2017 that Mrs Burke had:[26]
… advised Finalysons that she does not wish to seek a grant of probate in Lady Edith’s estate in favour of herself as executor once she has obtained a grant of probate in her husband’s Richard Burke’s estate. … We seek the agreement of the Public Trustee to accept and undertake the role of executor of Lady Edith’s estate in place of the deceased executor appointed under Lady Edith’s will, namely Richard Burke.
[26] Exhibit MPJ8 to the affidavit of Mark Peter Jappe affirmed 8 February 2021.
Thereafter, according to the Public Trustee’s records, Mrs Burke requested the Public Trustee to make application for an order pursuant to s 9(1)(h) of the Public Trustee Act1995 (SA) in respect of Edith’s estate on 28 June 2017. Section 9(1)(h) of the Public Trustee Act1995 (SA), provides that the Court may make an administration order “if an executor or person entitled to administration requests the Public Trustee to apply for an order under this section”.
Upon making application, the Public Trustee was informed by the Registrar of Probates that the affidavit in support of the application for an administration order must recite the fact and date of the grant of probate in Mr Burke’s estate to Mrs Burke.[27] However, Mrs Burke had not obtained a grant of probate in her husband’s estate. I note the only asset in the affidavit of assets and liabilities in respect of Mr Burke’s estate is Edith’s estate. In a letter to the Registrar of Probates, the Public Trustee stated that all Mr Burke’s other assets were held in joint names.[28] Again, according to the Public Trustee’s records, Mrs Burke on 8 January 2018 requested the Public Trustee pursuant to s 9(1)(h) to make application for an administration order in respect of Mr Burke’s estate.
[27] Exhibit TA10 to the affidavit of Thomas Lewis Abbott sworn 19 February 2021.
[28] Exhibit TA23 to the affidavit of Thomas Lewis Abbott sworn 19 February 2021.
The Public Trustee obtained a grant of letters of administration with the will annexed in Mr Burke’s estate on 7 June 2018 and a grant of letters of administration with the will annexed in Edith’s estate on 9 August 2018.
In a letter to Mr Paterson of the Public Trustee dated 11 October 2018,[29] Mr Tarca stated that in Finlaysons’ view the wording of clause 1 of the 2012 will required the location of evidence of Edith’s wishes, or the directions of the Court in relation to the meaning of the words, prior to any decision and action in relation to distribution. Mr Tarca stated that Finlaysons had not been provided with any information or evidence nor found anything to indicate Edith’s wishes as referred to in the 2012 will.
[29] Exhibit MJP9 to the affidavit of Mark Peter Jappe affirmed 10 February 2021.
Thereafter, the Public Trustee engaged Mr Jappe’s firm, Adelta Legal, and gave instructions to make this application for advice or direction.
The Public Trustee submitted that according to an “Interim Client Statement” at 23 November 2020 she held $580,148.63 in respect of Edith’s estate, that she has got in the assets and subject to legal costs has paid the estate’s debts.
The Public Trustee is the lawfully appointed administrator of Edith’s estate
Mrs Burke argued on her application for joinder that she did not renounce executorship of Edith’s estate and that the Public Trustee “got her to sign” the documents permitting the Public Trustee to apply for grants pursuant to s 9(1)(h) in Edith’s estate and Mr Burke’s estate.
Mrs Burke sought to be joined to argue that having regard to the representations made to her by officers of the Public Trustee, the Public Trustee was acting for as her agent and obtaining probate for her. Mrs Burke maintained she is trustee of both Edith’s estate and Mr Burke’s estate.
Mrs Burke contended that the conduct of the Public Trustee is such that it is no longer open to her to seek orders which are contrary to the conduct that she has engaged in regarding Edith’s estate and Mr Burke’s estate. Mrs Burke questioned whether the Public Trustee’s application is properly constituted having regard to the prior orders and grants being made and whether it is open to the Public Trustee to seek directions in Edith’s estate. She also questioned “the finality of orders made by a Master of this Court sitting in the Probate jurisdiction”.
The Public Trustee is the lawfully appointed administrator of Edith’s estate and Mr Burke’s estate. The grants have not been recalled or revoked. They are binding, valid, and “conclusive as to the appointment of the Public Trustee as administrator and where the grant is with the will annexed conclusive as to the validity and contents of that will”.[30] The grants do not determine the meaning of the contents or the terms of the wills.
[30] Learmouth et al, Williams and Sunnucks, Executors, Administrators and Probate (21^st ed, 2018) at [34‑02].
Mrs Burke’s complaints and allegations regarding her interactions with the Public Trustee are detailed extensively in her affidavit and that of her solicitor. Whether they have any basis is not a matter for my determination and has no bearing on the proper construction of the 2012 will and the distribution of Edith’s estate which is the matter for determination on the Public Trustee’s application.
The issues for determination
The issue for determination on the application for joinder was whether Mrs Burke had an arguable case as to an interest in the Public Trustee’s application which, as identified by the Public Trustee, involved consideration of the following four questions.
1. Did Edith give her whole estate to Mr Burke beneficially?
The Public Trustee submitted that there is no real doubt that Edith’s estate was given to Mr Burke merely as trustee as the words “to distribute” in clause 1 of the 2012 will indicate that Mr Burke was not the sole beneficial owner but holding the estate to then pass on.
Mrs Burke contended that the mere fact that the Public Trustee is seeking advice or directions on whether the estate was given to Mr Burke beneficially or as trustee is alone sufficient basis upon which she should be entitled to be joined and heard in respect of the application. I point out that the Public Trustee submitted there is no real doubt about Mr Burke being the trustee of a half secret trust. I agree. The real question for the Public Trustee, and about which she is in doubt, is the question of the distribution of the estate in accordance with the half secret trust created by the 2012 will.
Mrs Burke submitted that her contentions were not sought to be advanced on the application for joinder as final (because she had not yet put before the Court all the evidence which she contended is relevant to that question) but rather they were put to rebut the suggestion that any construction other than that contended for by the Public Trustee is not open and to support the application that she be joined.

Mrs Burke, by way of example, stated that the construction contended for by the Public Trustee is not the only reasonable and rational construction open. She argued that the Public Trustee relies on the use of the word “shall” in the incomplete phrase “shall distribute” as if that word is directory and mandatory. She contended that an alternative construction is that word “shall” was used in its future indicative tense, that is, shall “in the future distribute”. Mrs Burke submitted that used in that sense the absurdity contended for by the Public Trustee falls away because it leaves open the possibility, if not likelihood, that Edith intended to leave open her options as to the identity of her chosen objects and, the ability to change her mind. It was submitted by Mrs Burke that this is consistent with the fact that Edith did, in fact, change her mind by not only drawing more than one will but also preparing inconsistent wishes about her stated beneficiaries in respect of former wills. Mrs Burke argued that the words “I give the whole of my estate to him” may mean that Mr Burke is the sole beneficiary and that the words “… that he shall distribute the same as he shall know to be in accordance with my wishes” may mean that his distribution of Edith’s estate is conditioned by any wishes she has made known to him and if no wishes were made known to him, the estate goes to him.
Edith’s estate was given to Mr Burke merely as trustee
In construing Edith’s will, I need to discover her intentions and the scheme she conceived for her will. Her intentions and scheme are to be ascertained from examination of the language of the 2012 will viewed as a whole. This involves identifying the natural and ordinary meaning of words and sentences used in the will in the context of all provisions in the will. In this task, I can be aided only by such facts as existed and were known to Edith at the date of her will which are admissible in interpreting the language of the will, but subjective evidence of Edith’s intentions cannot be taken into account.[31]
[31] King & Ors v Perpetual Trustee Company Ltd & Ors (1955) 94 CLR 70 at 78; Marley v Rawlings [2014] 2 WLR 213 at [18]-[19].
On my reading of the 2012 will, the first instance of the word “shall” in clause 1 obliges Mr Burke to distribute Edith’s estate. As such, on Edith’s death he held the estate on trust. Edith intended and the scheme she conceived for the 2012 will was that as trustee Mr Burke would distribute her estate or in other words pass it on to secret beneficiaries. She did not intend that he hold it beneficially. In my view, the 2012 will makes clear that Mr Burke takes the estate as trustee upon Edith’s death. The second instance of the word “shall” relates to the obligation imposed on Edith’s trustee to distribute her estate in accordance with her wishes, which is discussed below under the heading “If given to Mr Burke as trustee, was the trust a fully secret or a half secret trust?”.
The following matters support my interpretation of the 2012 will.
It is patently evident that the 2007 will, revoked by the 2012 will, is virtually identical to the 2012 will. The primary difference is that the 2007 will appoints Mr Tarca and Mr Burke executors and the 2012 will appoints Mr Burke sole executor. Clause 5 of the 2007 will provides that Mr Tarca may charge professional fees rendered by him or his firm in relation to the administration of the estate and clause 6 contains the precatory Hawaiian wishes.
Significantly, clause 2 of the 2007 will uses the same form of words giving rise to the half secret trust as the 2012 will. It provides:
I GIVE the whole of my estate to such of my executors and trustees and I direct them that they shall distribute the same as they shall know to be in accordance with my wishes.
Having regard to the reference in the 2008 LOEW to “the administration of the trusts of my will dated 23^rd day of April 2007”, there can be no doubt that the 2007 will gave Edith’s estate to Mr Tarca and Mr Burke on trust. Thus, the wording of clause 2 of the 2007 will giving rise to a half secret trust being virtually identical to the wording of clause 1 of the 2012 will supports my interpretation that on the proper construction of the 2012 will Edith gave Mr Burke her estate to distribute to those for whom he was holding the gift as trustee.
Mr Burke was an estates manager and, it would appear, an experienced will drafter. Had Edith intended to give her whole estate to Mr Burke beneficially it is reasonable to infer he would have drafted the 2012 will in terms similar, for example, to his own will. Mr Burke’s will dated 18 January 1997 gifts his whole estate to Mrs Burke if she survives him and if she dies before him to his two children in equal shares.[32] The following clauses in Mr Burke’s will are virtually identical to clauses 2 and 3 in the 2012 will:
3I DIRECT my executor to pay my debts, funeral and testamentary expenses and any duty or tax payable in consequence of my death from my estate, with no subsequent apportionment between any beneficiaries.
4.I EMPOWER my trustee:
(a) TO SELL, postpone sale, borrow with or without security, lease, accept surrenders of leases, repair, manage, exchange, appropriate in specie, partition or otherwise deal with respect to any part of my estate, for such purpose, at such time or times, on such terms and conditions, and with such determination of value, as my trustee thinks fit.
(b) TO RETAIN any investments held by me at my death AND TO INVEST any part of my estate requiring investment in such existing or future forms of investment and whether a wasting, hazardous or reversionary nature or not, as my trustee from time to time thinks fit, with power to vary or transpose the same.
The reference in clause 2 of the 2012 will to “no subsequent apportionment between any beneficiaries” supports the construction that Edith intended her estate to benefit more than one beneficiary just as Mr Burke intended by clause 3 of his will.
[32] Exhibit MPJ1 to the affidavit if Mark Peter Jappe affirmed 23 July 2020 at p 7.
As an estates manager and will drafter working in a law firm, it is most unlikely that Mr Burke would not have been aware of his fiduciary obligations to his clients. As such, if a client wished to leave their estate to him, he would not have drafted the will and would have referred the client for independent legal advice. Whilst Mr Burke was not a lawyer, as an employee in Finlaysons’ wills and estate practice, it is also most unlikely that he would have been unaware of the Australian Professional Conduct Rules which prohibit a solicitor drawing a will under which the solicitor will receive a substantial benefit.
It is also most unlikely Mr Burke would have drawn a will for Edith where he took her whole estate, particularly having regard to the intimate involvement he had in Edith’s financial affairs after she terminated her engagement of Finlaysons. That involvement appears to have been such that Mr Burke charged an average of $1,000 per month for his administration of Edith’s estate until her death in November 2016. On my rough calculation, $47,000 appears to have been deducted from Edith’s bank account and transferred to an account ending in 8705 for charges variously described, for example as “RDB admin”, “RDB admin fee” or “RDB administration” or “Admin [name of month]”.
Having regard to the details recorded in association with the transfers to the accounts ending in 6690 and 8705, as detailed by Mr Jappe in his affidavit affirmed on 16 October 2020, it is reasonable to infer that those accounts were owned by or in some way associated with Mr Burke.
I infer the transfer of the sum of $30,000, described as “EMB Memorial” from Edith’s NetBank Saver account to the account ending in 8705 on 15 August 2015, was transacted in accordance with the Memorial Arrangements document. As set out above, the document provided at clause 4 Edith’s direction that “the capital and income of the Fund is a gift to Richard and Carolyn Burke and is made freely and voluntarily and further, is made in anticipation of my death”.
It is reasonable to infer that a prudent, ethical estates manager in the position of Mr Burke who was intimately involved in the financial affairs of an elderly client with no known relatives and suffering macular degeneration, would have, had the client expressed the wish to make the estates manager their sole beneficiary, referred the client for independent legal advice and will preparation.
It is untenable and not reasonably arguable to suggest that Edith by clause 1 gave her estate beneficially to Mr Burke.
On the proper construction of clause 1 of the 2012 will, Edith appointed Mr Burke as her sole executor and trustee and gave him her estate to distribute to those for whom he was holding the gift as trustee. Accordingly, Mrs Burke application for joinder to make submissions on this question was refused.
2.If given to Mr Burke as trustee, was the trust a fully secret or a half secret trust?
The Public Trustee submitted that there is no real doubt that the trust in question is a half secret trust as its existence is disclosed by the terms of the 2012 will.
Mrs Burke argued that she should be entitled to be joined to the Public Trustee’s application because this question raises the issue of whether the estate was given to Mr Burke legally and on that question alone she, as Mr Burke’s sole beneficiary, ought to be permitted to make submissions. Mrs Burke submitted that the Public Trustee’s submission that it would have been a simple thing for Edith to have simply given her estate to Mr Burke instead of creating half secret trust, overlooks that the very point of a secret or half secret trust is to keep the beneficiary or beneficiaries a secret. She said nominating Mr Burke would have undermined that purpose and there may have been innumerable reasons why Edith did not wish to do so. Mrs Burke pointed to the fact that the documents show that Edith’s previous unsigned wills were always in the same or similar format. She argued that it also ignores the possibility that Edith may have wished to keep her ability to nominate persons open and the possibility that she may not have decided at the time of her will who she intended to make the object of the trust. Further, Mrs Burke submitted that there would appear to be no reason in principle why, using the words she used, the will precludes the trustee from being a beneficiary. She pointed to the fact that Edith chose Mr Burke as trustee must indicate a degree of trust which is not inconsistent with him being a future beneficiary.
Mrs Burke argued that there is a serious issue to be tried as to whether the 2012 will creates a half secret trust. It was submitted that the nature of the trust established by the words and whether that be a secret trust, a half secret trust, or a hybrid form of trust is important to the consideration of whether Mr Burke was a trustee or beneficiary of the trust, and therefore whether by succession Mrs Burke is a trustee or beneficiary of that trust. It was submitted that it would be a simple enough proposition for the Court to accept that at the time she made the will Edith may have had in mind a person other than Mr Burke as a beneficiary. It was also contended that “later, as their friendship grew and after he became ill, there is no necessary inconsistency or breach of duty, in Lady Badger informing him that she wished for him to take, and expressed those words to him”. Had she done so, it was submitted, there is no reason why he would of necessity be excluded as a beneficiary.
Mrs Burke submitted that the affidavit of Mr Abbott sworn on 22 February 2021 deposes to her instructions, that is, her knowledge of Edith’s wishes as communicated to her husband and the evidence on the Public Trustee’s file. Those instructions deposed to in para [3] of Mr Abbott’s affidavit are:
In 2016, after her husband became seriously ill with cancer, Lady Badger found out about his illness and his deteriorating condition, including the cost of medications that they were required to purchase to treat Richard Burke’s deteriorating medical condition; and
Prior to his death, and presumably after the death of Lady Badger, her husband, Richard Burke, told Mrs Burke that Lady Badger had left her entire estate to him and that Lady Badger wished Richard Burke to have and enjoy the entirety of her estate owing to his illness and his needs.
The evidence on the Public Trustee’s file referred to is a sentence in a file note apparently prepared by Keith Sinkinson of the Public Trustee’s office “in the first half of 2017” (“the Sinkinson note”) which states:
Richard’s wife Carolyn, advised that Richard had told her that the entire estate was to pass to him and apart from attending to the disposal of the ashes as directed in the will there were no other distributions to be made”
Mrs Burke submitted that this evidence alone ought to be sufficient for the Court to be satisfied that Mr Burke was in fact aware of Edith’s wishes.
Mrs Burke asserted that Edith’s will permitted Edith to change her mind, as she appears to have been prone to do, and thereby enable her to effect an alteration of the objects of any trust in accordance with that change of mind. It was argued that such a contention is not inconsistent with Edith possibly wishing to nominate Mrs Burke and/or others to Mr Burke. In this case, the affidavit of Mr Abbott sworn on 22 February 2021 is consistent, it was argued, with that possible construction.
In short, Mrs Burke sought to be joined to argue that the 2012 will does not create a half secret trust or, if it does, that there is evidence of Edith’s wishes which would establish Mr Burke and her as objects of that trust.
Clause 1 of the 2012 will gives rise to a half secret trust
In a fully secret trust, the testator gives property, apparently beneficially, without words creating a trust. However, the trustee agrees separately with the testator that he or she will hold the property on trust.
The intended trust in the 2012 will is not a fully secret trust because the existence of the trust is disclosed by the terms of the will.
The 2012 will is secret as to the name and description of the objects of the trust, but indicates that those details were communicated separately to Mr Burke. The intended trust is a “half secret trust” because Edith has provided an indication that Mr Burke as executor is not to hold her estate beneficially but as a trustee by use of the words “I GIVE the whole of my estate to him that he shall distribute the same as he shall know to be in accordance with my wishes”.[33] The use of the words “he shall distribute the same as he shall know to be in accordance with my wishes” indicates that the existence of the trust was known to Mr Burke at the time Edith made the will.
[33] See, for example, Re Fleetwood (1880) 15 Ch D 594 (“to be applied as I have requested him to do”); Blackwell v Blackwell [1929] AC 318 (“for the purposes indicated by me to them”); Re Beckbessinger [1993] 2 NZLR 362 (“to be held in accordance with a confidential memorandum which I have given to them”).
As explained by the authors of Williams on Wills, where a will gifts property to a person on trusts “which are referred to in, but not defined by, the will, the trustees cannot take beneficially”.[34]
[34] Francis Barlow, Christopher Sherrin, Richard Wallington, Susannah Meadway, and Michael Waterworth, Williams on Wills (9^th ed, LexisNexis Butterworths, 2008) vol 1 at [36.10]. See also Rawstron & Anor (Executrices of the Estate of Lucian Freud) v Freud [2014] EWHC 2577 (Ch) at [15]‑[33].
Like any trust, a half secret trust “requires certainty of object”. If the half secret trust fails for lack of certainty of objects, the trustee holds the property for those entitled to the residue or the next of kin.[35]
[35] Ibid.
Edith’s property is given under the 2012 will to beneficiaries upon trusts referred to, but not defined, in the will. Mr Burke was to hold the property for the secret beneficiaries, or if the trusts fail, for those entitled to the residue or the next of kin on intestacy.[36]
[36] Ibid.
The authors of Williams on Wills state that:[37]
…where a testator makes or leaves unrevoked a disposition on the faith of a promise, whether express or tacit, on the part of the done that he will carry out the testator’s intentions with respect thereto, equity will admit evidence, as to the testator’s intentions and the communication thereof to the donee and his acquiescence therein and will compel the donee, as being a trustee to carry out the testator’s intentions, unless they are prohibited by law. Thus the essential elements of a secret trust are the intention of the testator to subject the primary donee to an obligation in favour of a secondary donee; and the acceptance of that obligation by the primary donee expressly or by acquiescence.
[37] Ibid.
In Ledgerwood v Perpetual Trustee Co Ltd (“Ledgerwood”),[38] Young J stated the rule against delegation of will making power is not infringed in circumstances where a testator gives property to a trustee to hold on terms of a valid existing trust.
[38] (1997) 41 NSWLR 532 at 540.
Justice Young expressed the view in Ledgerwood[39] that where a trustee of a half secret trust renounces probate, having regard to the principle that equity will not allow a trust to fail for lack of a trustee, the trust does not fail. In this matter, Mr Burke did not renounce, he died. The trust is not something that lies with Mr Burke personally and there is no doubt that the Public Trustee as administrator with the will annexed remains bound by the half secret trust if it is otherwise valid.
[39] Ibid at 535.
Mr Burke must have been informed about the intended trust by Edith and he must have agreed to be bound by it for the trust to take effect. I infer Edith communicated her intention to create a half secret trust when she gave Mr Burke her instructions for the 2012 will. I refer to the matters detailed earlier in these reasons, particularly at para [39], concerning the documents executed by Edith on 16 July 2012. The evidence clearly suggests that Mr Burke attended on Edith on 16 July 2012 when she received her documents from the deed packet in her name from Finlaysons’ deed safe and executed the 2012 will. I also infer Mr Burke agreed to be bound by the half secret trust created by the 2012 will when Edith confirmed her intention to create the trust upon her execution of the will on 16 July 2012.
There is no reasonable argument against the interpretation that the 2012 will gives Edith’s estate to Mr Burke as trustee of a half secret trust.
For the reasons given in response to the next question, Mrs Burke has no interest in the question of whether the trust is a fully secret or a half secret trust.
3.If given to Mr Burke as trustee, are the identities of the beneficial objects able to be identified?
The question is whether the half secret trust is sufficiently certain to permit distribution in accordance with what may be identified as Edith’s wishes or whether it is so uncertain as to be invalid.
Upon Mr Burke’s death, the issue is whether Edith’s wishes can still be proven. If they cannot, her estate will be distributed as on an intestacy.
The Public Trustee submitted that the distribution of Edith’s estate in accordance with the half secret trust was to be “as he shall know to be in accordance with my wishes”. It was submitted that “know” in the present tense implies that there is a state of knowledge held by Mr Burke as to Edith’s wishes. It does not suggest that his discretion is unfettered. It states that the distribution is to be within the paradigm of Edith’s known wishes.
Mrs Burke’s contention deposed to in her affidavit affirmed on 11 December 2020 is that there were no signed documents left by Edith which properly evidence her testamentary intentions which would allow the Court to conclude that a trust exists.

Mrs Burke questioned how the Public Trustee has managed to identify those persons to whom distributions should be made. She asserted that the Public Trustee has had regard to earlier testamentary statements by Edith and based her decision on those documents. She complained that there is no explanation about why she has not been included.
Mrs Burke argued that the Public Trustee has proceeded on two erroneous assumptions. The first is that Edith’s wishes at the time she executed the will in 2012 were the same as the wishes recorded in the unsigned LOEW. It was submitted there is absolutely no evidence that Edith’s wishes in 2012 were the same, or could have been the same, or might have been the same, as they were in 2008. It was also submitted it is an erroneous assumption that Edith never provided any indication of her wishes to Richard Burke or to anyone else from 2012 until her death.
The identities of the beneficial objects are able to be identified
There is no evidence that any other memorandum or LOEW were provided to Finlaysons with the 2012 will. Mr Tarca confirmed in the letter from Finlaysons dated 28 February 2019 that there are no further original testamentary documents in the possession of Finlaysons executed by Edith.
It appears, having regard to the letter to Edith from Mr Burke dated 11 July 2012, that Edith requested the deed packet and that Mr Burke assisted Edith in having her documents removed from the deed safe. Edith acknowledged receipt of those documents on 16 July 2012, which documents included the 2007 will, the 2008 LOEW, and the enduring power of attorney given to Mr Tarca and Mr Burke. On the same day Edith executed the 2012 will revoking the 2007 will, she also revoked the enduring power of attorney given to Mr Tarca and Mr Burke and executed an enduring power of attorney in Mr Burke’s favour. I therefore infer that Edith had in her possession the original executed 2007 will and the original executed 2008 LOEW when she made the 2012 will.
Edith wanted to keep the objects of her bequests secret. The 2008 LOEW reveals that Edith wished to make a bequest to the University of Adelaide, to provide for a number of friends, and make gifts to certain institutions and charities.
There can be no doubt about the validity of the gift in the 2007 will. Following the termination of Finlaysons’ services in 2012, Edith made the 2012 will in almost identical terms with the difference being the removal of Mr Tarca as executor and trustee and the appointment of Mr Burke as sole executor and trustee.
The issue is whether when Edith made the 2012 will she made wishes known to Mr Burke either orally or in writing. The only testamentary documents or LOEW are those in evidence before the Court.
Having regard to the information before the Court, it appears unlikely that Edith would make the 2012 will and then simply rely upon an oral statement to Mr Burke as to the potential objects of her trust. Edith engaged in prudent will‑making and executed the 2007 LOEW and the 2008 LOEW with professional assistance. It would seem to be against the weight of the evidence that in 2012 or later she in fact told Mr Burke orally what she wanted and he kept no record of it.
In In re Pugh’s Will Trusts; Marten v Pugh & Anor,[40] the testator appointed a solicitor who had drafted his will to be his executor and trustee and by clause 6 of the will devised and bequeathed his residuary estate, subject to payment of debts, funeral and testamentary expenses and legacies, to his trustee absolutely, directing him, “to dispose of the same in accordance with any letters or memoranda I may leave with this my will and otherwise in such manner as he may in his absolute discretion think fit”. However, the testator left no letters or memoranda with his will. As such, it was determined that the residuary estate was held on trust for undefined objects, that the trust was void for uncertainty and, accordingly, the estate was held on trust for the testator’s next of kin. In short, the gift failed.
[40] [1967] 1 WLR 1262.
It would seem very unlikely that Mr Burke, an estates manager and experienced will drafter, would either lose a document prepared expressing wishes in July 2012 (or later), or for whatever reason, not provide it to Finlaysons.
It is reasonable to infer that a prudent, ethical estates manager in the position of Mr Burke who had prepared a will containing a half secret trust for an elderly client (with no known relatives and suffering macular degeneration) and who was intimately involved in the financial affairs of that client[41] would have, had the client expressed the wish to make the estates manager and/or the estates manager’s relative the objects of the half secret trust, referred the client for independent legal advice and will preparation.
[41] I strongly suspect that Mr Burke’s management of Edith’s financial affairs included facilitating the withdrawal of $30,000 from Edith’s account on 15 August 2015 pursuant to the Memorial Arrangements document.
Mrs Burke asserted that Edith found out about Mr Burke’s illness in 2016 and expressed the wish that Mr Burke have the entirety of her estate (“the purported expression of wish”). Mrs Burke contended that the Sinkinson note supports her instructions, as deposed to in Mr Abbott’s affidavit sworn on 22 February 2021.
I note that Mrs Burke made no mention of the purported expression of wish in her affidavit of 11 December 2020. Acknowledging that Mrs Burke did not have the benefit of legal representation when she gave evidence on 17 August 2020, I also note that she made no mention of the purported expression of wish. Rather, her focus was on the $30,000 pursuant to the Memorial Arrangements document.
Edith was aged 99 in 2016 and Mr Burke appears to have been managing her financial affairs up until her death. It is most unlikely that had Edith told Mr Burke she wished for him to take her whole estate that he – being a prudent and ethical estates manager – would not have referred her for independent advice and will‑making.
The assertion of the purported expression of wish is untenable and the matters deposed to in Mr Abbott’s affidavit of 22 February 2021 are not reasonably arguable to justify an order for joinder of Mrs Burke to the Public Trustee’s application. Mrs Burke has no interest in making submissions in relation to the half secret trust or its beneficial objects. If the half secret trust fails, Edith’s estate does not go to Mrs Burke but on an intestacy.
There is no evidence before me to suggest a LOEW was made after the 2008 LOEW, at the time of the making of the 2012 will, or after the making of the 2012 will before Edith’s death. The only evidence of written wishes is the 2008 LOEW.
I infer Finlaysons’ internal memorandum dated 11 July 2012, requesting the deposit of three documents which included the 2008 LOEW, was prepared at Mr Burke’s direction. On the same day the memorandum was prepared, Mr Burke wrote the 11 July 2012 letter to Edith enclosing the deed packet and its contents and the Finlaysons Security Acknowledgement Advice. It is reasonable to infer that Mr Burke was aware of the 2008 LOEW:
(1)on 11 July 2012 when it was deposited into the deed packet;
(2)when he prepared the 11 July 2012 letter and Finlaysons Security Acknowledgement Advice; and
(3)on 16 July 2012 when Edith acknowledged receipt of the 23 documents in the deed packet, which included the original executed 2008 LOEW, by signing the Finlaysons Security Acknowledgement Advice.
Despite there being no original executed or copy of the executed 2008 LOEW before the Court, as detailed above I am satisfied it was executed on 15 August 2008 and kept in Finlaysons’ deed safe until Edith received it on 16 July 2012.
Having considered the evidence before the Court, I am satisfied that when Edith made the 2012 will her wishes were the same as those recorded in the 2008 LOEW signed by her. There is no tenable evidence before the Court to suggest those wishes were later replaced by Edith.
I am satisfied that the half secret trust in the 2012 will is not void for uncertainty and the objects of the gift in it are defined in the 2008 LOEW.
Mrs Burke has no interest in making submissions regarding the identities of the beneficial objects of the half secret trust as she has no interest in Edith’s estate. The only evidence of a gift to Mr Burke and/or to Mrs Burke by Edith is in the context of the Memorial Arrangement document. It is untenable to suggest that Mr Burke or Mrs Burke are entitled to receive the estate beneficially. Accordingly, Mrs Burke’s application for joinder to make submissions on whether the trust was a secret or half secret trust question was refused. I also refuse her application to make submissions regarding the identity of the beneficial objects of the half secret trust.
4.If the beneficial objects are identified as being the subject of “wishes” rather than specific gifts, how should the estate be distributed?
The 2012 will should be distributed in accordance with the 2008 LOEW. The Public Trustee is advised and directed that she would be justified in distributing Edith’s estate as proposed in her originating application.[42]
[42] FDN 13.
Conclusion
On the proper construction of the 2012 will, Mr Burke takes Edith’s estate as trustee of a half secret trust. Edith gave her estate to Mr Burke as trustee to distribute to those for whom he was holding the gift as trustee. The beneficial objects of the trust are identified as the subjects of wishes contained in the 2008 LOEW.
The Public Trustee is advised and directed that she would be justified in distributing Edith’s estate as proposed in her originating application.[43]
[43] FDN 13.
I will hear further submissions concerning Edith’s wish regarding the fragrant scattering of her and Geoffrey’s ashes over the Na Pali Coast of the Island of Kauai and costs.