In the Estate of Gagliardi

[2020] NTSC 74

CITATION:In the Estate of Gagliardi [2020] NTSC 74

PARTIES:IN THE ESTATE OF MICHAEL GAGLIARDI

ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory at Alice Springs

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:2020-03075-SC

DELIVERED:  2 December 2020

JUDGMENT OF:  Riley AJ

Judgment category classification:    B

Judgment ID Number:  Ril2002

Number of pages:  2

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

In the Estate of Gagliardi [2020] NTSC 74

No. 2020-03075-SC

IN THE ESTATE OF GAGLIARDI

ON REFERENCE FROM THE REGISTRAR OF THE SUPREME COURT OF THE NORTHERN TERRITORY AT ALICE SPRINGS

CORAM:    RILEY AJ

REASONS FOR ORDER

(Delivered 2 December 2020)

1. The Registrar referred this matter to the Supreme Court pursuant to

   
   

   s 17(2)(c) of the Administration and Probate Act1969 (NT).

2. Two years before his death the deceased, Michael Gagliardi, executed two brief Wills, the first dated 2 July 2018 and the second dated 17 July 2018. The Wills were each created using a so-called “Will Kit”.

3. In the first Will the first name of the deceased is incorrectly spelt as “Michel” rather than “Michael”. That Will names six intended beneficiaries accompanied by the phrase “to be distributed equal”. In the second Will the deceased named the same six intended beneficiaries but neglected to specify how the estate was to be distributed.

4. In an affidavit the solicitor for Peter Gagliardi, the executor named in each Will, submitted that it was clear from a comparison between the first Will and the second Will that it was the intention of the testator that the class of beneficiaries common to both Wills receive equal distributions from the estate.

5. In my opinion it is tolerably clear from the second Will read alone that the intention of the testator was that the identified persons were to receive equal distributions from the estate.

6. Should there be any doubt about that conclusion then the Will would either be meaningless or ambiguous and, in those circumstances, reference may be had to s 31 of the Wills Act2000 (NT) which permits resort to extrinsic evidence to construe a Will. The extrinsic evidence in this case is the former Will which makes the intention of the testator clear.

7. The Registrar should proceed with the application accordingly.

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