In the Estate of Wright - [2023] NTSC 94

CITATION:In the Estate of Wright [2023] NTSC 94
PARTIES:IN THE ESTATE OF WRIGHT

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:2023-00561-SC

DELIVERED:  13 October 2023
JUDGMENT OF:  Burns J
REPRESENTATION:
Counsel:
Applicant: Self-Represented

Judgment category classification:    C
Judgment ID Number:  Bur2316
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
In the Estate of Wright [2023] NTSC 94
No. 2023-00561-SC

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

CORAM: Burns J
REASONS FOR DECISION
(Delivered 13 October 2023)
Introduction

The deceased, Rhonda Wright, died on 19 July 2022 leaving an estate with a net value of approximately $1,010,054.97. The deceased made a will (the Will) comprised of two pages that was executed on 6 February 2010 in the presence of two witnesses, being John Andrew Wright and Niew Bolesworth.
The Will appears to have been created by the use of a pro forma will template and without the assistance of a legal practitioner. The template document was designed to allow a testator to add their own personal details and the details of any bequests in blank portions of the document left blank for that purpose.
The Will names John Andrew Wright as the executor and trustee of the deceased’s estate. On 4 April 2023 Mr Wright applied for a grant of probate on the Will. On 6 April 2023 the Registrar, being doubtful that probate should be granted, referred the application to the Court in accordance with s 17 (2) (c) of the Administration and Probate Act 1969 (NT). Unfortunately, due to an oversight, the matter was not brought before a Judge until 9 October 2023, which has caused a regrettable delay in resolving the matter.
The problems which exist with the grant of probate may be summarised as:
A.One of the witnesses to the Will is also a beneficiary under the Will; and
B.alterations have been made to the Will in a manner which does not comply with the provisions of the Wills Act2000 (NT).

Disposition to a witness

The Will provides for a beneficial disposition to John Andrew Wright, the son of the testator. Unfortunately, John Andrew Wright was also one of the witnesses to the attestation of the Will. This situation is governed by s 12 of the Wills Act, which provides:
12     Can interested witnesses benefit from dispositions under wills?
(1)     Subject to subsection (2), if a beneficial disposition is given or made by will to a person who is a witness to the will, the disposition is void to the extent that it concerns the person or a person claiming under him or her.
(2)     A beneficial disposition is not void under subsection (1) if:
(a)at least 2 of the witnesses to the will are not persons to whom a beneficial disposition is given or made by the will;
(b)all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition according to the will; or
(c)the Court is satisfied that:
(i)the testator knew and approved of the disposition; and
(ii)the disposition was given or made freely and voluntarily by the testator.
Section 12(2)(a) is not satisfied. There were only two witnesses to the Will, one of which was Mr Wright.
The Will provided for dispositions to John Andrew Wright and his sister Tamara Ann Wright. By an affidavit promised 5 June 2023, Tamara Ann Wright has consented in writing to the distribution of the disposition according to the Will. I am therefore satisfied that the requirements of s 12(2)(b) of the Wills Act have been met such that the disposition to Mr Wright is not void.
Alterations to the Will
The Will at the time of execution appointed John Andrew Wright as executor and trustee of the testator’s estate. After payment of debts and other expenses, the Will provided that the testator’s estate was to be divided between John Andrew Wright and Tamara Ann Wright. The Will was completed and signed using a light blue ink. This is attested to in affidavits filed by the witnesses to the signing of the Will, John Andrew Wright and Niew Wright (formerly Bolesworth).
It appears that at some later time the deceased made alterations to the Will using a darker blue ink and black ink. Whether this reflected two separate occasions on which alterations were made is unclear. If these alterations are effective, they alter the distribution of the estate. The dark blue ink alterations provide for the distribution of the estate as follows:
a)    gift of “my pearls etc” to Tamara Ann Wright;
b)   gift of “house, boat, vehichel (sic) and all my belongings between you both, Commonwealth Bank, & Members Equity and Wespac (sic) Bank” to Tamara Ann Wright and John Andrew Wright; and
c)    residue of estate to Tamara Ann Wright and John Andrew Wright.
The “house” to which the testator refers is not specified in the Will. The deceased owned a house at 6 Prior Circuit, Katherine and also a 34% share in a house at 12 Shaw Street, Katherine. As a matter of practicality this presents no difficulty as whichever house was not being referred to forms part of the residue of the estate which is to be shared equally between the same beneficiaries.
The black ink alterations state “As the family knows I allso (sic) would like Jeffrey Maxwell Dennien may stay at 6 Prior Circuit Katherine as long as he wishes”. It is accepted by all parties that the intention of the testator was to grant Jeffrey Maxwell Dennien a life interest in the house at 6 Prior Circuit, Katherine.
The handwriting in dark blue ink and in black ink has been identified as that of the deceased.[1]
The requirements for valid alterations to a will are found in s 16 (1) of the Wills Act, which provides:
16 How wills may be altered
(1) An alteration made to a will after the will is executed is not effective unless the alteration:
(a)is executed in a manner in which a will is required to be executed by this Act;
(b)is made by a minor pursuant to an order of the Court made under section 18(1) and is otherwise in accordance with section 18;
(c)is made for and on behalf of a person without testamentary capacity pursuant to an order of the Court made under section 19(1) and is otherwise in accordance with Division 2 of Part 3; or
(d)is a document that under section 10 the Court is satisfied embodies testamentary intentions of a deceased person and so constitutes an alteration to the will of the deceased person; or
(e)obliterates words in the will so that their effect is no longer apparent.
The requirements of s 16(1)(a) are not met in the present case because the alterations are not signed by the testator and nor are they appropriately witnessed. It follows that the alterations to the Will are ineffective unless the Will is a document that under s 10 the Court is satisfied embodies the testamentary intentions of a deceased person and so constitutes an alteration to the will of the deceased person.[2]
The relevant sections of s 10 of the Wills Act are:
(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.
In her affidavit, Tamara Ann Wright described the deceased as a “simple person” who would not have been aware of the proper processes for altering a will.
I am satisfied that the handwritten additions to the Will in dark blue and black inks were made by the deceased with the intention of altering the Will. I am satisfied that the altered Will embodies the testamentary intentions of the deceased and so constitutes an alteration to the Will of the deceased.
There will be a grant of probate to John Andrew Wright based on the Will of the deceased dated 6 February 2010 as altered by the deceased.
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[1]Affidavits of Jeffrey Maxwell Dennien, Tamara Ann Wright, John Andrew Wright and Niew Wright.

[2] Wills Act s 16(1)(d).