In the Estate of Banister - [2023] NTSC 44

CITATION:In the Estate of Banister [2023] NTSC 44
PARTIES:IN THE ESTATE OF BANISTER
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:2021-00767-SC

DELIVERED:  25 May 2023
JUDGMENT OF:  Burns J

REPRESENTATION:
Counsel:
Applicant: B Stafford
Solicitor:
Applicant:Maurice Blackburn

Judgment category classification:    C
Judgment ID Number:  Bur2309
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
In the Estate of Banister [2023] NTSC 44
No. 2021-00767-SC

BETWEEN:
IN THE ESTATE OF BANISTER
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory

CORAM: Burns J
REASONS FOR ORDERS
(Delivered 25 May 2023)
Introduction

Ian Ross Earle Banister (the deceased) died on 19 November 2020.
By an application for letters of administration filed 29 March 2021, Wai Cheng Banister (the applicant) claims a grant of administration of the estate.
In an affidavit in support of that application promised 21 January 2021, the applicant deposes to the following relevant facts:
(a)     the applicant is the wife of the deceased;
(b)     no will of the deceased has been located;
(c)     she contacted the Northern Territory Public Trustee Office and confirmed that the deceased did not hold a will in their office;
(d)     the deceased is survived by three issue, being Anthony Earl Banister (59 years), Bradley Gerald Banister (53 years), and Cindy Rene Banister (53 years).
(e)     the deceased left an estate within the Territory;
(f)   she is not aware of any claims against the estate other than those set out in the affidavit of assets and liability in this proceeding; and
(g)     she is the creditor of the deceased.
In an updated affidavit of publication and search promised 22 April 2021, the applicant deposes that she advertised her intention to apply for letters of administration on 8 March 2021, but that advertisement did not elicit a response from any person and no caveat was lodged subsequently.
The deceased left an estate with a (net) value of the intestate estate at $492,407.91. In the Affidavit of Assets and Liabilities promised 14 November 2022, the applicant proposed that the net assets of the estate be distributed as follows:
(a) The applicant will be entitled to the prescribed amount of $350,000 and an additional sum of $47,469.31 equal to one third of the value of the balance of the intestate estate; and
(b) The issue of the deceased will be entitled to the balance of the intestate estate in equal shares, being a sum of $32,64.20 each.
As deposed in an updated affidavit in support of the application promised on 18 August 2022, on 27 August 2021 the applicant became aware that on 12 January 2014 the deceased had signed a two-page handwritten document, which appears to embody his testamentary intentions (the Document). The Document states, amongst other things, the following:
(a)     Whatever assets in joint names with Wai Banister will be fully distributed to her (Wai) based on the ground that the wealth has been generated since the marriage and with the efforts of her.
(b)     At marriage date with Wai in 1996, the bank balance will be distributed to Anthony, Bradley and Cindy in equal share.
(c)     After distribution to the three children and the appointed executor fee, what is left behind in bank balances will be distributed to Wai.
(d)     The beneficiary of the life insurance is for Wai.
If the deceased’s estate is distributed pursuant to the Document as opposed to the laws of intestacy, this is likely to change the amount of each person’s entitlement with reference to the deceased’s bank balance at the time of his marriage to the applicant.
The Document was not properly executed pursuant to section 8(1) of the Wills Act, namely the deceased did not make his signature in the presence of two or more witnesses.
The Registrar of the Supreme Court has jurisdiction to grant administration.[1] The Registrar must not, however, grant administration without an order of the Court in any case where it appears to the Registrar to be doubtful whether the administration should be granted.[2]
By a Reference to the Court by the Registrar on 12 April 2023, the Registrar has referred the matter to the Court under section 17(2)(c) of the Administration and Probate Act (the Act). The referral requests that the Court determine if administration of the estate should be granted to the applicant pursuant to the laws of intestacy, upon which the applicant has made an application, or the Document.
Section 10 of the Wills Act 2000 (NT) (the Wills Act) is in the following terms:
10   When Court may dispense with requirements for execution of wills
(2)     If the Court is satisfied that a deceased person intended a document or part of a document that purports to embody the testamentary intentions of the deceased person (but which is not executed in the manner required by this Act) to constitute his or her will or an alteration of his or her will or to revoke his or her will, the document or part of the document constitutes the will of the deceased person or an alteration of the will or revokes the will, as the case requires.
(3)     In forming its view whether a deceased person intended a document or part of a document to constitute his or her will or an alteration of his or her will or to revoke his or her will, the Court may have regard (in addition to the document or a part of the document) to any evidence relating to the manner of execution or the testamentary intentions of the deceased person, including evidence (whether or not admissible before the commencement of this section) of statements made by the deceased person.
It is therefore a matter for the Court to determine whether the deceased intended the Document or part of the Document to constitute his will. In other words, whether the deceased held testamentary capacity at the time of the writing the Document.
Test of testamentary capacity
The testamentary capacity test as established in Banks v Goodfellow[3] requires the testator:
(a)     to understand the nature of the act and its effects;
(b)     to be aware of the extent of the property of which they are disposing;
(c)     to be able to comprehend and appreciate the claims to which they ought to give effect; and
(d)     to be suffering from no insane delusions.
I note the existence of a guardianship order does not of itself require, or justify, a presumption or finding of testamentary incapacity.[4]
It is established that the test for mental competency is a legal test, not a medical one.[5]
Evidence of testamentary incapacity
In determining intention and testamentary capacity it is relevant that the deceased was diagnosed with dementia in 2013.
In Re Fenwick,[6] Palmer J explained at [126] to [127] that the best such evidence of testamentary incapacity is that of a specialist professional, for example a psychiatrist, consultant physician or clinical psychologist who has recently examined the incapacitated person and who expresses an opinion in a report compliant with the expert witness rules of conduct.
By affidavit promised on 19 August 2022, the applicant deposes to the following relevant facts:
(a)     The Document was found on 27 August 2021 in the top level of a chest of drawers that were being donated.
(b)     The applicant had told the deceased that he would need to get medical evidence from a doctor that he had the relevant capacity and meet with a solicitor to make a valid will.
(c)     The Document was written on 12 January 2014 in circumstances where the deceased was at home, the deceased indicated to the applicant that he would be writing a will but did not know how to distribute his estate and sought advice from the applicant as to the types of assets and liabilities he owned and who could witness the will.
(d)     The applicant believes that at the time the deceased prepared the Document, he lacked the relevant testamentary capacity to enter into a will due to his dementia diagnosis.
(e)     The deceased was diagnosed with dementia on 16 August 2013 following a haemorrhagic stroke on 14 February 2013.
(f) On 9 February 2015 the applicant was appointed as the deceased’s Adult Guardian pursuant to the Adult Guardianship Act due to the deceased’s intellectual disability.
Relevantly, the applicant has provided the medical reports from Dr Michael Lowe and Dr B Jagadeesh Kandangath. Dr Lowe did not specifically assess the deceased’s capacity to make a will, however generally was of the view that “the results of [the deceased’s] cognitive tests would usually be sufficient to mean that the deceased did not have the capacity to make a will”. Dr Kandangath reported that after a review of the deceased’s medical records the deceased did not have capacity to make a will on 12 January 2014.
Given the circumstances in which the Document was written, the information deposed by the applicant in relation to the advice sought from her, and the medical evidence available, I am of the view that the deceased did not have testamentary capacity at the time of writing the Document.
To remedy any doubt the Court may have over the testamentary capacity of the deceased, I wrote to the solicitor of the applicant on 8 May 2023, requesting surety that:
(a) The three children of the deceased are aware of the proceedings; and
(b) They do not want to make any submissions.
On 12 May 2023 my associate received a letter from Ms Bianca Stafford, solicitor of the applicant enclosing emails from Bradley Banister and Anthony Banister advising they do not wish to make any submissions to the Court and have no dispute with the applicant being executor of the estate.
Ms Stafford also advised:
(a)     Ms Cindy Banister, the daughter of the deceased has been aware of the applicant’s application since approximately January 2021.
(b)     The consent of Ms Banister has been unable to be obtained despite numerous attempts.
(c)     The applicant and the deceased’s two sons are no longer in contact with Ms Banister and do not know of her current whereabouts.
Given the length of time since Ms Banister has been aware of the application, I am satisfied that no application from her is forthcoming.
Consequently, I am satisfied that the deceased did not hold testamentary capacity at the time of the writing of the Document, and no claim has been made against the applicant. Therefore, the laws of intestacy prevail.
Distribution of the estate
The distribution of intestate estates is governed by the Act. Section 66(1) of the Act is in the following terms:
66 Distribution of intestate estate on intestacy
(1) The person or persons entitled to take an interest in the intestate estate of an intestate, and the interest in that estate that that person is or those persons are entitled to take shall, subject to this Division, be ascertained by reference to Schedule 6 according to the facts and circumstances existing in relation to the intestate.
Schedule 6 Part I of the Act provides that where the intestate is survived by a spouse and by issue, if the value of the intestate estate exceeds the prescribed amount and there is more than one issue of the intestate, the spouse is entitled to one third of the value of the balance of the intestate estate and the issue are entitled to the balance of the intestate estate after payment to the spouse of the sum to which the spouse is entitled.[7]
Pursuant to regulation 1A of the Act, the estate of the deceased person is to be administered in accordance with the regulations as in force at the date of the death. Regulation 3(1)(a) of the Regulations that were in force between 24 May 2019 and 14 April 2021 indicate that the prescribed amount under Schedule 6, Part I, item 2, paragraphs (1)(b) is $350,000. This is in accordance with the applicant’s affidavit of assets and liability.
In my assessment, the applicant is a fit person to be granted administration of the estate of the deceased.

Conclusion

The Document does not constitute a will as prescribed by the Wills Act.
I am satisfied that the deceased did not hold testamentary capacity to write a will and therefore do not dispense with the requirements for the execution of wills as permissible by section 10 of the Wills Act.
Accordingly, I have made orders as follows:
1.Pursuant to s 14 of the Administration and Probate Act 1969, letters of administration of the estate of the late Ian Ross Earle Banister, deceased intestate, be granted to Wai Cheng Banister.
2.The estate will be distributed pursuant to Schedule 6 Part I Item 2(1)(b) of the Administration and Probate Act 1969 in accordance with the Regulations that were in force as at the date of the deceased’s death.
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[1]Administration and Probate Act 1969 (NT) s 17(1).

[2]Ibid s 17(2)(c).

[3](1870) LR 5 QB 549.

[4] Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377.

[5] G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths Australia, 2017, 2nd Ed), Chapter 2.2.

[6] [2009] NSWSC 530.

[7] The Act, Sch 6, Part 1, Item 2 (1)(b).