In the Estate of Whitnall - [2022] NTSC 20

CITATION:In the Estate of Whitnall [2022] NTSC 20
PARTIES:IN THE ESTATE of the late GRAEME LINDSAY WHITNALL
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:2021-03439-SC
DELIVERED ON:  18 March 2022
HEARING DATE:  On the papers
JUDGMENT OF:  Barr J
CATCHWORDS:

SUCCESSION – Intestate estate – Application for grant of administration by son of deceased – Referral by the Registrar of Probate pursuant to s 17(2)(c) Administration and Probate Act 1969 (NT) – Surviving spouse entitled to the bulk of the intestate estate – Applicant “next of kin” for purpose of grant of administration – Surviving spouse supports grant to the applicant – Administration granted to applicant
SUCCESSION – Intestate estate – Administration and Probate Act 1969, s 66 and Schedule 6, Part I, Item 2, par 1(b) – Surviving spouse entitled to the bulk of the estate on intestacy – Spouse disclaims her interest – Applicant proposes distribution of intestate estate between deceased’s two sons in equal shares – Held, on disclaimer, the disclaimed benefit passes to next class of beneficiary – Deceased’s sons entitled in equal shares
Administration and Probate Act 1969 (NT), s 22, s 66, Schedule 6 (Part I, Item 2)

In the Estate of Simmons (deceased) (1990) 56 SASR 1
Re Scott (deceased), Widdows v Friends of Clergy Corp [1975] 2 All ER 1033
The Estate of Gibbs [2020] NTSC 41
G E Dal Pont & K F Mackie, Law of Succession, Lexis Nexis Butterworths, 2013

REPRESENTATION:
Counsel:
Applicant:Self-represented
Respondent:
Solicitors:
Applicant:Self-represented
Respondent:
Judgment category classification:    B
Judgment ID Number:  Bar2202
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
PROBATE JURISDICTION
AT DARWIN
The Estate of Whitnall [2022] NTSC 20

No. 2021-03439-SC

IN THE ESTATE OF THE LATE
GRAEME LINDSAY WHITNALL
ON REFERENCE FROM THE
REGISTRAR OF THE SUPREME
COURT OF THE NORTHERN
TERRITORY

CORAM: Barr J
REASONS FOR DECISION
(Delivered 18 March 2022)

This matter comes before a single judge by Registrar’s reference pursuant to s 17(2)(c) Administration and Probate Act 1969. The issue is whether the Registrar should issue administration of the estate of the deceased to the applicant, Shane Lindsay Whitnall, who is the deceased’s son.
The deceased died on 5 August 2021. He had married Mary Ellen Carmichael on 25 October 1975, and was still married to her at the time of his death. The parties had finally separated in or about late 2009,[1] and final orders by way of property settlement (which determined the financial relationship between the parties) had been made by the Federal Magistrates Court on 23 February 2010. However, they had not divorced.
It should be presumed that the deceased died intestate. The applicant made enquiries with (1) the solicitors who acted for the deceased in relation to his marital separation, and (2) the Northern Territory Public Trustee. Neither office held a will for the deceased. It is the applicant’s belief that his father died intestate. The applicant caused a notice of intention to apply for letters of administration to be published on the Supreme Court website on 9 September 2021, but that notice did not elicit any relevant response and no caveat was lodged subsequently.[2]
Formal application for administration of the estate was made on 26 October 2021. The applicant filed a number of documents in support of the application, including a document described “Oath of Office” in which he promised that, if granted letters of administration of his father’s estate, he would “well and truly collect and administer the estate of the deceased according to law”.
Pursuant to s 22 (1) Administration and Probate Act 1969, the Court may grant administration of the estate of an intestate person to the spouse of the deceased person, or to one or more of the next of kin.[3] The spouse of the deceased has deposed that she does not wish to administer the estate of the deceased and that she renounces any entitlement to be appointed the administrator of the deceased’s estate.[4]
The term “next of kin” is defined s 6 (1) of the Act to mean “those persons, other than a spouse or de facto partner of the deceased person, who would be entitled to take an interest in the estate of the deceased person if he or she had died intestate”.
The deceased was survived by two adult children, both sons: the applicant, and his younger brother Lance James Whitnall. In order to determine whether the applicant would qualify as “next of kin” for the purpose of being granted administration of his father’s estate, it is necessary to have regard to s 66 Administration and Probate Act 1969, and also to consider the value of the assets of the estate and the manner of distribution of the estate specified in Part I of Schedule 6 Administration and Probate Act 1969.
In the Affidavit of Assets and Liabilities promised 6 October 2021, the applicant calculated the net value of the intestate estate to be $434,370.[5] Under Part I of Schedule 6 Administration and Probate Act 1969, Item 2, par 1 (b), where an intestate deceased is survived by spouse and issue, the spouse of the deceased is entitled to the prescribed sum of $350,000 and an additional amount being one-third of the balance of the estate.[6] The issue are entitled to the remaining two thirds of the balance.
The applicant’s legal entitlement would therefore be just over $28,000.[7] The fact that he is entitled to take such interest qualifies him as “next of kin” for the purpose of obtaining a grant of administration of the deceased’s estate. It is appropriate that Letters of Administration be granted to him. It may be noted that the spouse of the deceased consents to his appointment.[8]
I turn to consider the manner of distribution of the estate.
In the Affidavit of Assets and Liabilities promised 6 October 2021, the applicant proposed that the net assets of the estate be distributed to himself and to his brother in equal shares. However, such distribution would not have been a distribution according to law, because the law is clear that the spouse of the deceased is entitled to the very substantial part of the estate referred to in [8] above, notwithstanding the property settlement the subject of court orders made in 2010.
After the applicant had sworn the Affidavit of Assets and Liabilities, the spouse of the deceased declared, by affidavit, as follows:[9]
I renounce and relinquish any claim I may have to the Estate pursuant to the Administration and Probate Act 1969.
I consent to the deceased’s Estate being distributed equally between my two sons, Shane Lindsay Whitnall and Lance James Whitnall.
I am satisfied that the statement of those matters, on oath, is a sufficient disclaimer by the spouse of her statutory entitlement.
The consequence is that the estate is to be distributed as provided for in Schedule 6, Part IV, Item 1 Administration and Probate Act 1969, that is, as though the intestate was not survived by a spouse or de facto partner, but rather is survived by issue, his two sons, who are entitled to the whole of the intestate estate in equal shares.
In the case of an intestacy, there was previously doubt as to whether one could disclaim at all, and thus vary statutory rules of distribution.[10] However, as explained in The Estate of Gibbs,[11] the law recognises that a beneficiary may disclaim at any time, at least up until the issue of the grant of administration.[12] The law further recognizes that the disclaimed entitlement devolves on the next person or class of persons who may establish an entitlement.[13] In the present case, the next class of beneficiary entitled is the ‘issue’ (the sons) of the deceased.
In conclusion, the two sons of the deceased have become entitled in equal shares, and the proposed distribution is now “according to law”.
The Court’s formal order is as follows:
Pursuant to s 14, s 22(1)(d) and s 17(3) Administration and Probate Act 1969, I make an order for the grant of administration of the estate of Graeme Lindsay Whitnall, deceased, to the applicant, Shane Lindsay Whitnall.

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[1]Affidavit of Mary Ellen Whitnall, 14 December 2021, par 2.

[2]Affidavit of the applicant, 6 October 2021, par 2.

[3]The several alternatives in s 22 (1) of the Act include the spouse or de facto partner of the deceased person; one or more of the next of kin; the spouse or de facto partner jointly with one or more of the next of kin; or such person (who may even be a creditor of the deceased) as the Court thinks fit.

[4] Affidavit Mary Ellen Witnall, 14 December 2021, par 6.

[5]Pursuant to s 66 (3) Administration and Probate Act 1969, the value of the intestate estate is arrived at by deducting from the gross value of the estate an amount equal to the debts and liabilities, and funeral and testamentary expenses payable out of the estate.

[6]Reg 3 (1)(b) Administration and Probate Regulations 1983 specifies $350,000 as the prescribed sum for Schedule 6, Part I, item 2, par 1 (b) of the Act. The additional one-third is referred to in par 1 (b)(ii).

[7]After deduction from the net estate of the spouse’s prescribed entitlement of $350,000, there would remain $84,370. After payment to the spouse of her additional one third, the applicant would receive one half of the balance, just over $28,000.

[8]Affidavit Mary Ellen Whitnall, 14 December 2021, par 8.

[9] Affidavit Mary Ellen Whitnall, 14 December 2021, pars 9, 10.

[10]See G E Dal Pont & K F Mackie, Law of Succession, Lexis Nexis Butterworths, 2013, par 7.46.

[11] The Estate of Gibbs [2020] NTSC 41 at [19].

[12]In the Estate of Simmons (deceased) (1990) 56 SASR 1 at 10.7, 12.5 per Legoe J.

[13]Ibid at 14, 16-17, referring to Re Scott (deceased), Widdows v Friends of Clergy Corp [1975] 2 All ER 1033.