In the Estate of Flack
[2021] NTSC 37
•28 April 2021
CITATION:In the Estate of Flack [2021] NTSC 37
PARTIES:IN THE ESTATE OF FLACK
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:2020-02030-SC
DELIVERED: 28 April 2021
JUDGMENT OF: Brownhill J
Briginshaw v Briginshaw (1938) 60 CLR 336; Chang v Chang [2012] VSC
346; In the Goods of Cadge (1868) LR 1 P&D 543, referred to.
G E Dal Pont & K F Mackie, Law of Succession (LexisNexis Butterworths,
1st ed, 2013).
Administration and Probate Act 1969 (NT) s 17.
Wills Act 2000 (NT) s 10, s 16.
REPRESENTATION:
Solicitors:
Applicant:KJ Lawyers & Migration Consultants
Judgment category classification: C
Judgment ID Number: Bro2108
Number of pages: 7
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINIn the Estate of Flack [2021] NTSC 37
No. 2020-02030-SC
BETWEEN
IN THE ESTATE OF FLACK
ON REFERENCE FROM THE REGISTRAR OF THE SUPREME COURT OF THE NORTHERN TERRITORY
CORAM: BROWNHILL J
REASONS FOR ORDERS
(Delivered 28 April 2021)
On 8 February 2021, under s 17(2)(c) of the Administration and Probate Act 1969 (NT), the Registrar referred this matter (‘the reference’).
The deceased made a will on 12 July 2019 (‘the Will’) using a generic pre-printed will form comprising two pages. She appointed her son, Nicholas Trevor Flack, as her Executor. He applied for probate of the Will on 16 June 2020.
The Will includes, by clause 5, a direction that the Executor pay all debts and then give the residue of the estate to Mr Flack. On the application for probate, Mr Flack produced with the Will a single handwritten page headed “Attachment to the will of Ludmila Flack” (‘the Attachment’). The Attachment provides as follows:
I give my son Nicholas Trevor Flack the full rights as Executor of my Estate to maintain, manage, rent and sell my belongings and after paying all debts share the profit of my Estate between him and my son Maksym Sergiyovich Shtaynts as follows:
- Maksym Sergiyovich Shtaynts 50% minus half (50%) of all expenses incurred by Nicholas Trevor Flack for maintaining, managing, rent and sales of my belongings
- Nicholas Trevor Flack 50% plus half (50%) of all expenses incurred by him for maintaining, managing, rent and sales of my belongings.
There are two signatures at the foot of the Attachment and the names of the signatories, namely Mr Flack and Yekaterina Yeskina.
The Reference notes that the Attachment is not dated or signed by the testator, and that the Will makes no reference to the Attachment. The disposition made by the Will is different to the disposition described in the Attachment. It is the intention of Mr Flack to distribute the estate in accordance with the Attachment. The estate has a net value of $216,832.93.
The Reference notes that s 16(1)(d) of the Wills Act 2000 (NT) (‘the Act’) provides that an alteration made to a will after it is executed may be effective if it is a document that, under s 10, the Court is satisfied embodies the testamentary intention of a deceased person. The Registrar sought material from Mr Flack as to the deceased’s testamentary intention and the Attachment.
Relevant provisions of the Act
The common law presumes that unattested alterations to a will are effected after the execution of the will and are thus ineffective.[1] Unless the presumption is rebutted, what is to be admitted to probate is the will in its original form.[2] The presumption may be rebutted by extrinsic evidence, such as statements made by the testator either before or at the time of execution to the effect that the alteration had been made, and/or evidence of attesting witnesses that the alterations were made prior to execution.[3]
The Act provides that an alteration made to a will after the will is executed is not effective unless the alteration, relevantly, is a document that under s 10 the Court is satisfied embodies testamentary intention of a deceased person and so constitutes an alteration to the will of the deceased person (s 16(1)(d)).
Section 10 of the Act applies to a “document”, which is defined to mean a record of information including anything on which there is writing (s 10(1)). The Attachment is a “document” within the meaning of s 10. Section 10(2) provides that, if the Court is satisfied that a deceased person intended a document that purports to embody the testamentary intention of the deceased person (but which is not executed in the manner required by the Act) to constitute an alteration to his or her will, the document constitutes an alteration of the will as the case requires.
Section 10(3) provides that, in forming a view about the deceased person’s intention, the Court may have regard (in addition to the document) to any evidence relating to the manner of execution or the testamentary intention of the deceased person, including evidence (whether or not admissible before the commencement of the section) of statements made by the deceased person.
This requires that the document purports to embody the testamentary intention of the deceased and that the evidence must satisfy the Court that the deceased, either at the time of the subject document being brought into being or at some later time, by some act or words, revealed an intention the document should, without more on her part, operate as her will.[4]
The applicant (Mr Flack) has the onus of proof on the balance of probabilities, subject to the Briginshaw standard.[5] I note that the effect of a finding that the Attachment falls within s 10 of the Act, and so comprises an alteration to the Will within s 16, is that Mr Flack will be required to share the estate equally with his brother, which is what he seeks to do. This is a consideration that the Court can bring to bear on whether it is reasonably satisfied on the evidence that the Attachment is a document that embodies the testamentary intention of the deceased person pursuant to s 10 of the Act.
Is the Attachment an alteration?
The term “alteration” is not defined in the Act. An alteration is understood at common law to be a change in the original disposition.[6] The Attachment comprises an alteration to the Will within the meaning of the common law and s 16(1)(d) of the Act.
The material before the Court about the deceased’s testamentary intent
There are a number of affidavits before the Court. The following affidavits are most relevant to the present issues.
By affidavit made on 16 June 2020, Mr Flack attests that he identified the Will by the deceased’s handwriting.
The handwriting in the Will and the Attachment appear to be of the same person.
By affidavit made on 29 October 2020, Mr Flack attests that he was at the hospital waiting outside her room when the two witnesses to the Will, Bevan Wall and Vivek Singh, came to the hospital to witness the Will. He attests that it was the deceased’s intention that Mr Flack should be the executor and take control of all assets and dispose of 50% of the residue of the estate to his brother. He attests that, when the deceased executed the Will, she had the Attachment with her. He attests that the deceased used a ‘will kit’ and that “we did not know that the attachment had also be signed to form part of the Will”. He attests that the Attachment was meant to be used for the distribution of the assets, which the deceased always intended to leave to both her surviving sons, Mr Flack and his brother. He attests that the deceased mistakenly drafted the Will as she believed that would be the way the disposition worked.
By affidavit made on 12 November 2020, Bevan Wall has attested that he is a witness to the Will, that he recalls sighting the Attachment during the execution of the Will, that he was a long-term friend of the deceased, and that he knows her intention was always to leave all her assets to her two sons in equal shares, as expressed in the Attachment.
By affidavit made on 16 December 2020, Mr Flack’s solicitor, Ms Ranjithkumar, attests that she has had various communications with Mr Vivek regarding the Will and Attachment and providing an affidavit about them to the Court. Mr Vivek now resides in New South Wales. In those communications (via email and text message, copies of which are included in Ms Ranjithkumar’s affidavit), Mr Vivek confirms that he recalls seeing the Attachment when the Will was executed, and that he would be prepared to make an affidavit to that effect. The text messages disclose difficulties on his part attending before a Justice of the Peace to make the affidavit.
In my view, this evidence establishes to the necessary standard, and I am satisfied that, the Attachment embodies the testamentary intention of the deceased and that deceased, at the time of the Attachment being brought into existence and upon her execution of the Will, revealed her intention the Attachment should, without more on her part, operate as part of her Will, such that the disposition in clause 5 of the Will was altered by the disposition described in the Attachment.
Consequently, the Attachment is an alteration to the Will within s 16(1)(d) of the Act.
Order
Probate should issue to Mr Flack in accordance with the Will to administer the estate in accordance with the Will as altered by the Attachment.
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[1] G E Dal Pont & K F Mackie, Law of Succession (LexisNexis Butterworths, 1st ed, 2013) [5.44].
[2] Ibid.
[3] Ibid.
[4] Ibid, [4.35].
[5] Ibid, [4.47], citing Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’) at 362 per Dixon J. See also Chang v Chang [2012] VSC 346 at [14]-[15] per McMillan J.
[6] In the Goods of Cadge (1868) LR 1 P&D 543 at 545 per Sir Wilde.
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