In the Estate of the Late Horst Paul Hartung - [2021] NTSC 51

CITATION:In the Estate of the Late Horst Paul Hartung [2021] NTSC 51
PARTIES:IN THE ESTATE OF THE LATE HORST PAUL HARTUNG

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY exercising Territory jurisdiction exercising probate jurisdiction
FILE NO:(2021-00978-SC)
DELIVERED:  1 July 2021
HEARING DATES:  7 May 2021
FURTHER MATERIAL:                  10 May 2021
JUDGMENT OF:  Blokland J

CATCHWORDS:
PROBATE AND ADMINISTRATION – copy of purported Will found –
unknown whether original Will lost or destroyed – presumption of
revocation – presumption weak in all of the circumstances – presumption
rebutted – likely the Will was lost or mislaid – copy of the Will
admitted to probate – probate granted.

Allan v Morrison [1900] AC 604; Curley v Duff (1985) 2 NSWLR 716; Dalton v Dalton (Supreme Court of Western Australia, Parker J, 24 September 1997); McCauley v McCauley & McCauley (1910) 10 CLR 434; Re The Estate of the Late Elisabeth Maria Groll [2009] NTSC 14; Re Estate of Marcos [2001] VSC 69; Re Will of Orbini (1939) 42 WALR 83; Sugden v Lord St Leonards [1875] LR 1 PD 154; The Public Trustee in and for theState of Western Australian as Administrator of the Estate of Edward Plucinski (Dec) v Suwalska & Ors [2004] WASC 226; Welch v Phillips (1836) I Moo[d] PC 299; 12 ER 828; referred to.
Wills Act 2000 (NT) s 10(1)(a), s 10(2)

REPRESENTATION:
Counsel:
Applicant:Alison Phillis
Solicitors:
ApplicantPovey Stirk Lawyers and Notaries
Judgment category classification:    C
Judgment ID Number:  BLO2105
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
In the Estate of the Late Horst Paul Hartung [2021] NTSC 51

No. (2021-00978-SC)
BETWEEN:

IN THE ESTATE OF THE LATE HORST PAUL HARTUNG

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 1 July 2021)

Jennifer Lilian Hartung (Jennifer) seeks to have a copy of a document said to be the Will of Horst Paul Hartung (the deceased) admitted to probate. The copy of the document is annexure ‘A’ to the affidavit of Herbert August Hartung (Herbert). The application was initially brought pursuant to s 10(2) of the Wills Act 2000 (NT).[1] Additionally, the applicant seeks that probate of the estate of the deceased be granted to her.
The Facts
On the basis of the affidavit of the deceased’s son Herbert, sworn 18 April 2021 the Court finds Herbert and Jennifer, the wife of the deceased, found the document in the deceased’s belongings which they believe to be a copy of his Will.
Neither Herbert nor Jennifer were aware that the deceased had executed a will.
The document/copy of the will
The document marked ‘A’ which is annexed to Herbert’s affidavit is partially formatted in a pseudo-gothic style which is often seen in kits that people use to draft their own wills. Simon Palk observes “the printed will form has ironically not made life easy for the Do-it-Yourself testator”.[2] The format has not however been the problem here. The title states, “This is the last Will and Testament of Me”, followed by the words, “Horst Paul Hartung of 14 Larapinta Drive, Alice Springs in the State of [the] Northern Territory.”
The document is declared to be the deceased’s last Will and Testament which revokes all previous wills.
The document appoints Jennifer as Executor and Trustee unless she predeceases him or is unable or unwilling to be the executor, in which case the deceased’s sons are appointed in birth order, unless they predecease him or are unable or unwilling to be appointed, in which case the next son is appointed.
Provision is made in the document for the deceased’s personal effects to be left to the deceased’s sons in equal shares. Provision is also made for the deceased’s “half shares of the house plus contents of furniture plus the land and garage” to be left to his wife, Jennifer.
The trustee is directed to pay all debts, funeral, testamentary and probate expenses and any other duties from the estate. The remaining balance is to be distributed between the deceased’s sons.
The document is dated 6 April 1990 and purportedly signed by “Horst Paul Hartung”. Herbert states he recognises the signature on the document as his father’s normal signature. Two witnesses have signed, stated to be in the presence of each other, one being Eric Emmet (Eric). Herbert recognises who Eric was by his name. Herbert states Eric was the owner of a farm in Western Australia where the deceased would go from time to time and stay in the shearing quarters and assist. Eric is now deceased.
Jennifer is required to apply for probate of the deceased’s estate in order to deal with property located at 3/74 Lyndavale Drive, Alice Springs which is registered in Jennifer’s and the deceased’s name as tenants in common.
Karla-Lee Goodman, the solicitor instructed by Jennifer to apply for probate, annexed a copy of the Certificate of Title to Unit 3/74 Lyndavale Drive, Alice Springs to her affidavit. Ms Goodman states the grant of probate is required to transfer the deceased’s interests to Jennifer.
Ms Goodman confirms that the whereabouts of the original Will are unknown and upon examination, she believes the document marked annexure ‘A’ to Herbert’s affidavit to be a copy of the original.
At the Court’s request, Ms Goodman made enquiries with the Office of the Public Trustee of the Northern Territory. The Public Trustee has confirmed it is not in the possession of a Will for the deceased, nor does the Public Trustee have any interest in the estate. They did not seek to be heard in relation to this application.
Consideration
Section 10(2) of the Wills Act allows the Court to treat a document that purports to embody the testamentary intentions of a deceased person but which is not executed in the manner required, to constitute his or her will. For these purposes a “document” means a record of information and includes “anything on which there is writing”.[3] Section 10(2) is not relevant here as the “document” under consideration appears to be executed in accordance with the Wills Act, but is said to be a copy of the Will which embodies the testamentary intent.
The applicant is required in any event to prove the document is a copy of the Will as she is seeking to have the copy admitted to probate. The original is either lost, destroyed or misplaced. The principles to be applied in these circumstances have recently been confirmed by Master Newnes in The Public Trustee in and for the State of Western Australia as Administrator of the Estate of Edward Plucinski (Dec) v Suwalska & Ors (‘Public Trustee (WA) v Suwalska’),[4] citing Young J in Curley v Duff:[5]
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… secondly, it must be shown that that will revoked all previous wills, thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome… fourthly, there must be evidence of its terms, and fifthly, evidence of due execution.
The fact that a document which clearly appears to be a copy of a properly executed Will was found in the deceased’s personal belongings is some evidence of the existence of the deceased’s Will, even if the beneficiaries did not know of its existence. As noted in Public Trustee (WA) v Suwalska, when a will is lost, there is a presumption of destruction by the testator with an intention of revoking the will.[6] Thus, the proponent of the missing Will has the burden of rebutting the presumption that it has been revoked by destruction.[7] The terms of the Will itself may however affect the strength of this presumption. If the Will makes a careful and complete disposition of the testator’s property, and there are no other circumstances to point to a probable destruction by the testator accompanied by the intention to revoke the Will, the presumption is so slight that it may be said not to exist.[8] I am persuaded this is the case here.
The terms of the copy of the Will annexed to Herbert’s affidavit make appropriate provision for the deceased’s wife and children. All three sons are named in the Will. The form of title of at least some of the property that was held by the testator and Jennifer as tenants in common, is specifically dealt with. As Mildren J held in Re The Estate of the Late Elisabeth Maria Groll,[9] the nature of the provisions of the Will itself is very material, as is the nature of the custody in which the Will itself was kept.
It is difficult to think of other searches that could be made to find the original Will, given it was executed in 1990 and one of the witnesses, Eric is known to be deceased. It is possible or even likely the Will was executed on one of the deceased’s trips to Eric’s property in Western Australia.
In all of the known circumstances, I think it is most unlikely that the deceased destroyed the Will with the intention of revoking it and that instead, on the balance of probabilities, the original Will has somehow become lost. I am unable to say how it may have been mislaid. Perhaps it was between trips to Western Australia and back to the Northern Territory but I cannot find how that may have happened. Given the particular provisions and bequests in the Will and that the copy was found in the deceased’s belongings, I find the copy in annexure ‘A’ to Herbert’s affidavit is, on the balance of probabilities, a true copy of the deceased’s Will. The presumption in favour of destruction and change of testamentary intent is rebutted. I am satisfied on the balance of probabilities the deceased did not destroy his Will, nor change his testamentary intent. I think it is unlikely that the deceased would destroy his Will, change his testamentary intent and keep a copy of the revoked Will with his personal possession.
There are no other potential parties or persons with an interest in the estate, save there was the possibly the Office of the Public Trustee, who does not wish to be heard.
Given the circumstances of restrictions due to the Covid-19 lockdown, the reasons will be emailed to counsel or the solicitors.
Orders of the Court:
1.   The copy of the Will of Horst Paul Hartung, annexure ‘A’ to the affidavit of Herbert August Hartung, is to be admitted to Probate.
2.   Probate of the estate of the late Horst Paul Hartung is granted to Jennifer Lilian Hartung.
3.   Costs of this application are to be paid out of the estate of Horst Paul Hartung.

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[1] At the hearing the Originating Motion was varied to read “A declaration that the copy of the will of Horst Paul Hartung, annexure ‘A’ to the affidavit of Herbert August Hartung, be admitted to probate”.

[2] Simon N.L. Palk, ‘Informal Wills: From Soldiers to Citizens’ (1976) 5(4) Adelaide Law Review 382.

[3] Wills Act 2000 (NT), s 10(1)(a).

[4] [2004] WASC 226 at [11].

[5] (1985) 2 NSWLR 716 at 718-719.

[6] Public Trustee (WA) v Suwalska at [14] citing Welch v Phillips (1836) I Moo[d] PC 299; 12 ER 828; Allan v Morrison [1900] AC 604.

[7] Public Trustee (WA) v Suwalska at [14] citing; Re Will of Orbini (1939) 42 WALR 83 at 85; Dalton v Dalton, (Supreme Court of Western Australia, Parker J, 24 September 1997).

[8] Sugden v Lord St Leonards [1875] LR 1 PD 154; Re Estate of Marcos [2001] VSC 69 at [23].

[9] [2009] NTSC 14 at [14], citing McCauley v McCauley & McCauley (1910) 10 CLR 434 at 438.