In the Estate of Stewart - [2023] NTSC 62

CITATION:In the Estate of Stewart [2023] NTSC 62
PARTIES:IN THE ESTATE OF STEWART

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:2023-01191-SC

DELIVERED:  11 July 2023
JUDGMENT OF:  Burns J
REPRESENTATION:
Counsel:
Applicant: Marguerite Bowen
Solicitor:
Applicant:Bowen Lawyers

Judgment category classification:    C
Judgment ID Number:  Bur2313
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
In the Estate of Stewart [2023] NTSC 62
No. 2023-01191-SC

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

CORAM: Burns J
REASONS FOR ORDERS
(Delivered 11 July 2023)
Introduction

This is an application made under the Wills Act 2000 (NT) (Wills Act) and the Administration and Probate Act 1969 (NT) seeking probate of the estate of the late Francis Barry Stewart (the deceased). The applicant, Ian Robert Berry, is a friend of the deceased.
The deceased died testate on 10 November 2022, aged 83 years, leaving an estate with a net value of $436,946.77 comprised of real and personal property.
The valid will left by the deceased comprising of 5 pages, duly executed on 10 March 2023 (the Will) appointed the applicant as his Executor and Trustee. Pursuant to clause 4 of the Will, the estate was to be distributed as follows:
(a) $10,000 to Ian Berry;
(b) The residual of the estate to the Rotary Club of Darwin Sunrise to be used pursuant to clause 4(b)(iii) and (iv) of the Will.
On 24 September 2022, the deceased signed a document headed ‘Codicil to the Will of Francis Barry Stewart’ (the Codicil). The Codicil was witnessed by the applicant.
Pursuant to clause 1 of the Codicil, a sum of $30,000 is to be distributed to the deceased’s great-nephew, Joshua Paul Birchall-Hall from the deceased’s nominated bank account.
Pursuant with the Affidavit of Assets and Liabilities, promised on 13 March 2023, the applicant intends to distribute the deceased’s estate pursuant to clause 4 of the Will and clause 1 of the Codicil as follows:
(a)     $10,000 to the applicant;
(b)     $396,946.77 to the Rotary Club of Darwin Sunrise; and
(c)     $30,000 to Joshua Paul Birchall-Hunt.
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 12 April 2023, the Registrar has referred the matter to the Court under section 17(2)(c) of the Administration and Probate Act. The referral requests that the Court consider and determine the effectiveness of the alterations to the Will, and thereby testamentary intention of the deceased, by Codicil.
Alterations to a Will
The provisions of the Wills Act govern how a will may be effectively altered.
As the Codicil has only been attested and signed in the presence of one witness, being the applicant who is also a beneficiary until the Will, it has not met the requirements of the Wills Act,[3] and I am satisfied that the Codicil has not been executed in a manner in which a will is required to be executed.[4]
However, pursuant to section 10 of the Wills Act the Court may dispense with the requirements for execution of wills. Section 10 is in the following terms:
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.
Test of testamentary intention
The testamentary capacity test as established in Banks v Goodfellow[5] requires the testator:
(a)     to understand the nature of the act and its effects;
(b)     to be aware of the extent of the property of which they are disposing;
(c)     to be able to comprehend and appreciate the claims to which they ought to give effect; and
(d)     to be suffering from no insane delusions.
Evidence of testamentary capacity
By Affidavit promised on 3 May 2023, the applicant deposes to the following evidence of the manner of execution of the Codicil and statements by the deceased in relation to his testamentary intention as embodied in the Codicil:
·     The applicant has known the deceased since about 2006.
·     Around 2018, the applicant became aware of the deceased’s declining health when he informed the applicant that he was suffering from a terminal illness, namely emphysema.
·     The applicant assisted the deceased with tasks including the use of his computer, shopping and transport.
·     Around mid-2020, the applicant was informed by the deceased that his great-nephew Joshua was assisting him on a weekly basis with his personal care, home cleaning and gardening.
·     On 24 September 2022, the applicant was summoned to the deceased’s home where, upon his arrival, the deceased told the applicant that he wanted to add something to his Will, namely a provision for Joshua and made it apparent that he was of the view he would not live for much longer.
·     The applicant suggested a codicil.
·     The applicant had a general knowledge of a codicil but was not aware of the legal form and requirements of a codicil and was concerned with the urgency of having the document prepared while the deceased was able to give instructions.
·     The deceased dictated the content of the Codicil to the applicant who typed it on the deceased’s computer.
·     The applicant printed the codicil and the deceased signed it with the applicant as the witness.
There is no evidence before the Court that the deceased was suffering any degree of mental impairment as a result of his illness.
Given the circumstance in with the Codicil was written and the information deposed by the applicant in relation to form of the Codicil, I am of the view that the deceased did have testamentary capacity at the time signing the Codicil and dispense with the requirements for the execution of wills. Therefore, I am satisfied that the Codicil constitutes an alteration of the will of the deceased.
Distribution of the estate
The distribution of the estate is governed by the Administration and Probate Act.
There is no issue with the estate being distributed in such a manner as deposed in the applicant’s Affidavit of Assets and Liabilities.
Pursuant to affidavit of publication and search promised by Marguerite Bowen on 27 March 2023, I am satisfied that there is no evidence of a caveat having been lodged in relation to a grant or reseal being made in the estate of the deceased, and no election has been filed under section 110B of the Administration and Probate Act.
In my assessment, the applicant is a fit person to be granted probate of the estate of the deceased.
Conclusion
The Codicil does not constitute a will or an amendment to the Will as prescribed by the Wills Act.
I am satisfied that the deceased held testamentary capacity at the time of signing the Codicil and therefore dispense with the requirements for the execution of wills as permissible by section 10 of the Wills Act.
Accordingly, I have made orders as follows:
1. Pursuant to s 14 of the Administration and Probate Act 1969, probate of the estate of the late Francis Barry Stewart be granted to Ian Robert Berry.
2. Pursuant to s 10 of the Wills Act 2000, I dispense with the requirements for the execution of wills and order the document titled “The Codicil to the Will of Francis Barry Stewart” dated 24 September 2022 be deemed an alteration of the will of late Francis Barry Stewart.
3. The estate is to be distributed pursuant to the Affidavit of Assets and Liabilities promised by Ian Robert Berry on 13 March 2023.
------------

[1]Administration and Probate Act 1969 (NT) s 17(1).

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

[3]Wills Act s 8(1)(n).

[4]Ibid s 16(1)(a).

[5](1870) LR 5 QB 549.