In the Estate of Blyton
[2023] NTSC 12
•21 February 2023
CITATION:In the Estate of Blyton [2023] NTSC 12
PARTIES:IN THE ESTATE OF BLYTON
IN THE MATTER of an application to prove and admit to probate a copy of the Will of ATHOL MERVYN BLYTON
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-02156-SC
DELIVERED ON: 21 February 2023
DELIVERED AT: Alice Springs
JUDGMENT OF: Grant CJ
CATCHWORDS:
SUCCESSION – Wills, Probate and Administration – Probate and Letters of Administration
Application to prove a copy of the Will of the deceased – Whether the presumption of revocation rebutted – Copy of the Will proved and admitted to probate.
Cahill v Rhodes [2002] NSWSC 561, Curley v Duff (1985) 2 NSWLR 716, Estate of Manning [2015] NTSC 21, Estate of Ponikvar [2016] SASC 95, Proud v Proud [2012] WASC 134, referred to.
Judgment category classification: B
Judgment ID Number: GRA2302
Number of pages: 7
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSIn the Estate of Blyton [2023] NTSC 12
File No: 2022-02156-SC
IN THE ESTATE OF BLYTON
IN THE MATTER OF AN APPLICATION FOR LEAVE TO PROVE A COPY OF THE WILL OF ATHOL MERVYN BLYTON
CORAM: GRANT CJ
REASONS FOR ORDER
(Delivered ex tempore on 21 February 2023)
The deceased died on 26 June 2018 at the age of 91 years. The deceased executed a Will on 11 September 2003 in compliance with the formal requirements. The original of that Will cannot be located and only a copy of that Will has been located.
The deceased was a long-time resident of the Old Timers Nursing Home in Alice Springs. The copy Will appoints as executor and trustee the Director of Nursing of the Old Timers Nursing Home as at the date of the testator’s death. Mary Anne Miles was the Director of Nursing at the time of the deceased’s death. She has made an application for probate and has filed all necessary affidavits for that purpose.
Ms Miles has also made separate application to prove the copy of the Will and have it admitted to probate. The second application is necessitated by the fact that an application for probate will ordinarily require the production of the original Will by the person seeking the grant of probate. In circumstances where the original of the Will cannot be produced after the death of the testator, a presumption of revocation arises. That is, there is a rebuttable presumption that the deceased destroyed the original of the Will with the intention of revoking it. The strength of that presumption will depend upon the circumstances, and if it is not rebutted an intestacy will result and the deceased estate will be distributed according to the statutory rules on intestacy. This Court has power to find that the presumption has been rebutted, to recognise that the original of the Will has been lost, and to admit a copy of it to probate.
The total value of the deceased’s estate is estimated at $99,871.77. Under the terms of the copy Will, the deceased’s motor vehicles, personal effects, tools and household effects are bequeathed to the Old Timers Nursing Home. The residue of the deceased’s estate is then to be divided into four equal parts, with three parts to be paid to the Old Timers Nursing Home and the remaining one part to be paid to the Cooma Parish of the Uniting Church of Australia.
At the time of his death the deceased was divorced with no issue. His next of kin are a surviving sister and 11 children of his three deceased brothers. Should the deceased’s estate go on intestacy, the surviving sister would be entitled to half of the estate and the 11 children of his deceased brothers would be entitled to the other half of the estate in equal shares. On 15 December 2022, the Court ordered that the applicant serve a copy of the application and supporting affidavits on the deceased’s surviving sister and the 11 children of his deceased brothers. That has been done. The surviving sister does not oppose the application for probate. None of the 11 children of the deceased brothers have responded to the notice or otherwise sought to be heard on the application.
The onus of rebutting the presumption of revocation is on the person applying to the court for proof of a copy of the original Will. That requires the applicant to establish that it is more likely than not that the deceased did not destroy the Will with the intention of revoking it, and that the original of the document has simply been lost or misplaced: see Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; Estate of Manning [2015] NTSC 21; Proud v Proud [2012] WASC 134; Estate of Ponikvar [2016] SASC 95. The presumption of revocation is weakened where the Will makes a careful and complete disposition of the testator’s property and there are no other circumstances pointing to its probable destruction.
On the basis of the evidence which has been filed in both the application for probate and the application to prove the copy of the Will, I make the following factual findings:
(a)The deceased executed a Will on 11 September 2003. That Will was prepared for him by the Public Trustee of the Northern Territory. That Will was witnessed by two clerks in the employ of the Land Titles Office in Alice Springs.
(b)The Will executed on 11 September 2003 expressly revoked all previous Wills.
(c)The Will was properly executed according to law.
(d)In its terms, the Will makes a careful and complete disposition of the testator’s property.
(e)The deceased was 76 years of age at the time he executed the Will, and his circumstances did not materially change between that time and the time of his death. In particular, the deceased was divorced and without issue when he executed the Will, and he did not remarry or produce issue following the execution of the Will.
(f)Following the death of the deceased his friends packed up the property in his room at the Old Timers Nursing Home. Amongst that property was the bound and unsigned Will marked “COPY” and dated 11 September 2003. The copy Will was given to the administrators of the Old Timers Nursing Home.
(g)The solicitors for the applicant were subsequently advised by the Public Trustee that it did not hold an original Will for the deceased. However, it had at some point taken a scan of the Will executed on 11 September 2003. With that scan was a file note indicating that the deceased had chosen to store the original of the Will at the Old Timers Nursing Home. The scanned version of the executed Will is in precisely the same terms as the copy Will found in the deceased’s room. The deceased did not instruct the Public Trustee to prepare a Will at any time after 11 September 2003.
(h)The solicitors for the applicant were subsequently advised by the Old Timers Nursing Home that the original Will is not stored, or at least cannot be located, at any of their facilities.
(i)In or about 1998, the firm McBride & Stirk acted for the deceased in a property settlement with his former wife. On 1 April 1999, Povey Stirk became successor in practice to McBride & Stirk. In or about June 2006, the deceased engaged the firm Povey Stirk to prepare an Enduring Power of Attorney. Povey Stirk does not hold the original Will. The deceased did not instruct Povey Stirk to prepare a Will at any time after 11 September 2003.
(j)The solicitor for the applicant has written to all other firms in Alice Springs which may have made a subsequent Will for the deceased, or which may have held the original of the Will executed on 11 September 2003. Those enquiries have not disclosed that the deceased made another Will or that the original of the Will is held by any of those firms.
(k)The solicitor for the applicant has made enquiry of the National Australia Bank, which was the deceased’s principal financial institution. That institution does not hold any Will made by the deceased.
(l)In or about March 2020, two boxes containing the deceased’s personal possessions were sent to his surviving sister. She engaged the firm Walker Gibbs & King in Cooma to assist with her estate dealings. That firm has advised that the boxes containing the deceased’s personal possessions did not contain any original Will. The deceased’s personal documents and records contained two copies of a Will in the name of the deceased that were unsigned and dated 15 July 1998. The deceased’s personal documents and records did not contain any evidence suggesting that the original of the Will dated 11 September 2003 had been destroyed.
(m)It is likely that following the execution of the Will, the Public Trustee provided the deceased with both the original of the Will and the copy of the Will subsequently found following his death. It is unlikely that the deceased kept both the original of the Will and the copy Will in his room at the Old Timers Nursing Home. Had he done so, the original would almost certainly have been found in the room or sent to his sister together with his other personal effects following his death. It is improbable that the deceased had possession of both the original and the copy of the Will and subsequently destroyed the original with the intention of revoking it, but kept the copy of the Will.
On the basis of those matters, I find that the presumption of revocation has been rebutted and I make the following orders:
1.The copy of the Will executed on 11 September 2003 and now deposited in the Court Registry is proved and admitted to probate.
2.Probate of the estate of the late Athol Mervyn Blyton is granted to Mary Anne Miles.
3.The costs of this application are to be paid out of the estate of Athol Mervyn Blyton.
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