In the Estate of Muscat

[2023] NTSC 3

CITATION:In the Estate of Muscat [2023] NTSC 3

PARTIES:IN THE ESTATE OF MUSCAT

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:2022-02124-SC

DELIVERED:  9 January 2023

JUDGMENT OF:  Burns J

REPRESENTATION:

Counsel:

Plaintiff: Carolyn Walter

Solicitor:

Applicant:Ward Keller Lawyers

Judgment category classification:    C

Judgment ID Number:  Bur2302

Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

In the Estate of Muscat [2023] NTSC 3
No. 2022-02124-SC

BETWEEN:

IN THE ESTATE OF MUSCAT

ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory

CORAM:    Burns J

REASONS FOR ORDERS

(Delivered 9 January 2023)

Introduction

1. This is an application made under the Wills Act 2000 (NT) and the Administration and Probate Act 1969 (NT) seeking to prove a copy will and obtain a grant of Letters of Administration with will. The applicant, Ray Muscat, is the father of the late Bryce Omar Muscat (the deceased).

2. The application was commenced by ex parte originating motion filed on 24 August 2022. The application is supported by the following affidavits:

   (a)     affidavit of Ray Muscat promised on 5 October 2022;

   (b)     affidavit of Yulia Muscat promised on 5 October 2022;

   (c)     affidavit of Carolyn Louise Walter promised on 10 October 2022;

   (d)     affidavit of Carolyn Louise Walter promised on 19 October 2022; and

   (e)     affidavit of Carolyn Louise Walter promised on 24 October 2022.

3. The following factual matters are taken from the contents of these affidavits.

4. The deceased died on 4 May 2017, aged 23 years. He was a member of the Australian Defence Force (ADF). The deceased died having made a will through the ADF. Consistent with the usual ADF practice, the deceased’s will was held by the ADF in safe custody until such time as they received notice of his death. The will was executed on 6 February 2013 and nominated Matthew Peter Cajaglis, a friend of the deceased, as the executor. The deceased’s brother, Maxim Muscat, is the sole beneficiary under the will. On the face of the document, the original will was validly executed and witnessed. Consistent with the usual ADF practice, the original will was sent to the named executor upon the ADF receiving notice of the death of the deceased.

5. In or about June 2017, the applicant received a copy of the will from Military Super. He then engaged the firm of Ward Keller to assist in dealing with the deceased’s estate. Carolyn Louise Walter of Ward Keller attempted to contact the named executor via an email address provided by the applicant. The named executor did not respond.

6. In or about May 2021 the applicant met with Matthew Cajaglis, who informed the applicant that he had no knowledge of the whereabouts of the original will. The named executor stated that he had previously lived with his mother and the applicant contacted Mr Cajaglis’s mother and, at his request, she conducted a search of her house but was unable to find the original will. Other appropriate searches for the original will undertaken by the applicant’s lawyers were also unsuccessful.

7. On 20 January 2022 Matthew Cajaglis signed a Renunciation of Probate.

8. The principles governing an application to prove a copy will were stated by Young J in Curley v Duff (1985) 2 NSWLR 716, where his Honour said, at 718 G:

   As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will (see Re Molloy [1969] 1 NSWR 400), secondly, it must be shown that that will revoke all previous wills, thirdly that the presumption that when a will is not produced it has been destroyed must be overcome (see Allan v Morrison [1900] AC 604): fourthly, there must be evidence of its terms, and physically, evidence of due execution (see Gair v Bowers (1909) 9 CLR 510).

9. In the present case, there can be no doubt that there was a will as the original will was made  through the ADF and was held by it until such time as it received notification of the death of the deceased. A copy of the will was retained by the ADF when they forwarded the original to Mr Cajaglis. Clause 1 of the will revokes all previous wills. The copy of the will provides evidence of the terms of the original. There is also evidence in the copy will of due execution.

10. There is some doubt on the basis of previous authorities whether the presumption that the will has been destroyed by the deceased applies other than in cases where the will was last known to be in the possession of the testator, but it is unnecessary to explore that proposition in the present application. The evidence clearly establishes that the original will was never in the possession of the deceased. It was held in safe custody by the ADF from the time that it was executed until after the death of the deceased. The original will was then forwarded by the ADF to Mr Cajaglis. The evidence would clearly rebut any presumption that the deceased had destroyed, and thereby revoked, the will.

11. The only persons who would have an interest in the Estate under the rules of intestacy are the applicant and his former wife, Zetta Bone, the mother of the deceased. Notice of this application was provided to Ms Bone, but she declined an invitation to participate in the present proceedings.

12. I am satisfied that the named executor under the will is unwilling to take a grant of probate. The sole beneficiary under the will is the half-brother of the deceased, Maxim Muscat, who is under 18 years of age. The legal guardians of the sole beneficiary are his father, the applicant, and his mother, Dr Yulia Muscat. Both legal guardians of the sole beneficiary have standing to apply for Letters of Administration with the will. Dr Muscat has filed an affidavit consenting to the applicant making the present application.

13. I am satisfied that it is appropriate to make the orders sought by the applicant. I order:

    (a)     that leave be granted to the applicant Ray Muscat to prove a copy of the will of Bryce Omar Muscat dated 6 February 2013;

    (b)     that the copy of the last will of the deceased be admitted for the purposes of an application by Ray Muscat for Letters of Administration with the will;

    (c)     that the applicant be granted Letters of Administration with the will Subject to the Registrar’s usual requirements; and

    (d)     the costs of the application be paid out of the Estate.

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