In the Estate of Reisinger - [2023] NTSC 2

CITATION:In the Estate of Reisinger [2023] NTSC 2
PARTIES:IN THE ESTATE OF REISINGER

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:2022-02643-SC

DELIVERED:  9 January 2023
JUDGMENT OF:  Burns J

REPRESENTATION:
Counsel:
Applicant: Eric Maher
Solicitor:
Applicant:Maher Raumteen Solicitors

Judgment category classification:    C
Judgment ID Number:  Bur2301
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
In the Estate of Reisinger [2023] NTSC 2
No. 2022-02643-SC

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

CORAM: Burns J
REASONS FOR ORDERS
(Delivered 9 January 2023)
Introduction

Gertrude Maria Reisinger (the deceased) died on 8 April 2022.
By an application for probate filed 28 September 2022, Oliver Anton Reisinger (the applicant) claims a grant of probate.
In an affidavit in support of that application, the applicant deposes to the following relevant facts:
(a)     the applicant believes that a document annexed to his affidavit and dated 12 October 2005 is the last will of the deceased and has not been revoked;
(b)     his means of identifying the will is that he recognises the signature to the document to be that of the deceased; and
(c)     he is the executor named in the will.
The Registrar of the Supreme Court has jurisdiction to grant probate.[1] The Registrar must not, however, grant probate without an order of the Court in any case where it appears to the Registrar to be doubtful whether the probate should be granted.[2]
By a Reference to the Court by the Registrar on 20 October 2022, the Registrar has referred the matter to the Court under section 17(2)(c) of the Administration and Probate Act.
The document which is said to be the last will of the deceased is a 4 page document headed “Will Form”. It is a printed document with spaces left to enable the testator to fill in their personal details and testamentary wishes. The document was clearly not prepared by a legal practitioner.
On its face, the document was executed by the deceased on 12 October 2005 in the presence of 2 witnesses. This is consistent with the requirements of the Wills Act2000 (NT) (Wills Act). In the document, the deceased makes provision for specific bequests to both the applicant and his brother Guenther Edmund Reisinger. As I understand it, the applicant and his brother are the children of the deceased. The document also provides for bequests of money to the grandchildren of the deceased. The residue of the estate is, as I understand the document, to be divided equally between the applicant and his brother.
In the Reference to the Court, the Registrar states that it appears that at some time the deceased made alterations to clauses 4 and 5 of the document. Clause 4 is headed “Special Gifts” and appears to have originally been crossed out by the deceased, with this action being initialled by the witnesses. Underneath the crossed out section of the clause, the following words have been written in a darker pen:
Please do not fight over anything! Father would like to share equally and friendly!
In what appears to have been the original clause 5, the deceased provided for bequests of $10,000 to be made to each of her grandchildren. After that provision, and written in a darker pen, have been added the words:
Grandchildren shall receive $15,000 – = up from $10,000
The registrar notes that both of these alterations appear to have been signed by the deceased but have not been signed by the required two witnesses.
The Referral by the Registrar requests that the Court determine whether the alterations to clauses 4 and 5 of the document are effective. From the limited scope of the referral, I gather that the Registrar is satisfied that it would be appropriate to issue a grant of probate based upon the document but for the apparent alterations to clauses 4 and 5.
There is a rebuttable presumption that an unattested alteration to a will was made after the execution of the will.[3] In any event, the nature of the alteration to clause 5 makes it highly likely that that alteration, at least, was made subsequent to the execution of the document.
The manner in which a will may be altered is governed by section 16 of the Wills Act. This provides that an alteration made to a will after the will is executed is not effective unless the alteration is executed in a manner in which a will is required to be executed under that Act.[4] In other words, in order to be effective, an alteration to a will made after the execution of the will must not only be signed by the testator but must also be witnessed and signed by two witnesses.
On the face of the document, it appears that the alterations to clauses 4 and 5 were not signed by two witnesses. Prima facie, the alterations are ineffective. The alteration to clause 4 appears to be of no practical importance and, by itself, would not justify a refusal of a grant of probate. Different considerations must apply to the alteration to clause 5.
An exception to the provisions of section 16(1)(a) of the Wills Act is found in section 16(1)(d) of that Act, which provides that an alteration to a will shall be effective if it is “a document that under section 10 the Court is satisfied embodies testamentary intentions of the deceased person and so constitutes an alteration to the will of the deceased person”.
Section 10 of the Wills Act is in the following terms:
WILLS ACT 2000 - SECT 10
When Court may dispense with requirements for execution of wills
(1)    In this section, document means a record of information and includes:
(a)anything on which there is writing;
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(c)anything from which sounds, images or writings can be reproduced with or without the aid of another thing or device; and
(d)a map, plan, drawing or photograph.
(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.
(4)    This section applies to a document whether it came into existence in or outside the Territory.
On or about 24 October 2022, the Registrar wrote to the lawyers acting on behalf of the applicant informing them that the Registrar was unable to grant probate based on the alterations made to the will because the alterations were not executed as required by the Wills Act. The lawyers were informed that the matter had been referred to the Court to consider whether the requirement for execution of the alterations could be dispensed with pursuant to section 10(2) of the Wills Act, thus making the alterations effective pursuant to section 16(1)(d) of the Wills Act. The Registrar invited the applicant to provide further affidavit evidence in relation to the manner of execution of the alterations or regarding the testamentary intentions of the deceased person in making the alterations.
By email dated 30 November 2022, the applicant’s lawyers informed the Registrar that the applicant was unable to provide additional affidavit evidence to support the amendments to the will.
Pursuant to Rule 88.01.1 of the Supreme Court Rules (the Rules), an application for admission to probate of a document referred to in section 10(2) of the Wills Act is to be made by originating motion and supported by an affidavit setting out the grounds of the application. This procedure does not appear to have been adopted by the applicant’s lawyers, with the present proceeding being commenced by an application that probate be granted to the applicant. Neither the affidavit of the applicant, nor that of his lawyer in support of the application, set out the grounds of any application for admission of the altered will to probate. The only mention of the alterations is found in the affidavit of the applicant’s lawyer, who states that he has detected at paragraphs 4 and 5 of the will an attempt by the testator to vary the will, written in a darker pen and signed by the testator, but undated.
In addition, Rule 88.01.1 requires that any such application, together with the supporting affidavits, must be served on all persons who may be prejudiced by the admission of the document to proof. The persons who may be prejudiced in the present case are the applicant and his brother. There is no evidence that the applicant’s brother has been served with the required documents.
Notwithstanding these apparent procedural defects, the Registrar has apparently treated the application filed by the applicant as an application for admission to probate of the altered will. It is clear that the only way in which the altered will can be admitted to probate is if the Court is satisfied pursuant to section 10(2) of the Wills Act that the deceased intended the alterations to the will, and in particular to clause 5, to constitute an alteration to her will.
The present application has proceeded on the basis that the alterations were made by the deceased and signed by her. It is unclear whether this is the case. In his affidavit, the applicant makes no reference to the alterations and does not depose to recognising the handwriting constituting the alterations to be that of the deceased. The applicant does depose to recognising the signature to the will to be that of the deceased, but it is unclear whether he is referring only to the original attestation of the will or whether he intends to include the signatures adjacent to the alterations.
Similarly, the affidavit prepared by the applicant’s lawyer states that the alterations were signed by the testator, but provides no basis upon which he formed the opinion that the signatures were those of the deceased.
There is no evidence such as that which was before the Court in Flack which establishes the testamentary intentions of the deceased at the time the alterations were made (assuming they were made by the deceased). On the evidence presently available I could not be satisfied that the deceased intended the alterations to constitute an alteration to her will.
I am cognizant of the relatively small amount involved in this matter, but I am also aware of the fact that there is no evidence of enquiries having been undertaken of the grandchildren as to whether any statements were made to them (or to their parents or guardians) by the deceased regarding an intention to alter her will to make further provision for the grandchildren.
I direct that the applicant file further affidavit material directed towards identifying the handwriting of the alterations and the adjacent signatures to be those of the deceased, and deposing to the results of enquiries of the deceased’s grandchildren and parents or guardians regarding any expressed intention by the deceased to alter her will to make further provision for her grandchildren. I further direct that a copy of the application and all supportive documents be served on the applicant’s brother.
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[1]Administration and Probate Act 1969 (NT) s 17(1).

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

[3]In the Estate of Flack [2021] NTSC 37 (Flack) at 7.

[4]Wills Act s16(1)(a).