The Estate of Cook
[2022] NTSC 5
•19 January 2022
CITATION:The Estate of Cook [2022] NTSC 5
PARTIES:THE ESTATE OF THE LATE
GRACE JAYI COOK
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:2021-02657-SC
DELIVERED: 19 January 2022
HEARING DATE: Reference from Registrar Blanch
JUDGMENT OF: Kelly J
CATCHWORDS:
Application for probate of the will of the deceased by friend named as executor if the partner of the deceased named as primary executor is unwilling to act – partner of the deceased in India unable to return to the Northern Territory due to Covid – partner of deceased renounced probate – will contains apparent contradictions – applicant for probate claims to be entitled to 100% of the estate on the renunciation of probate by the primary executor - claim dubious - referral by the Registrar of Probate pursuant to s 17(2)(c) of the Administration and Probate Act 1969 (NT) – whether probate should be granted – held probate should not be granted except on the giving of an undertaking to the Court to file serve and prosecute an application to the Court for construction of the will
Administration and Probate Act1969 (NT) s 14, s 17(2)(c), s 28, s 29
Wills Act2000 (NT) s 8, s 46
Gallagher v Adams (1887) 13 VLR 948; Re Smith [1939] VLR 213, referred to
Judgment category classification: B
Judgment ID Number: Kel2202
Number of pages: 8
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Estate of Cook [2022] NTSC 5
No. 2021-02657-SC
THE ESTATE OF THE LATE
GRACE JAYI COOK late of 2 Myrtlewood Crescent, Zuccoli in the Northern Territory of Australia, retired, deceased
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 19 January 2022)
This application has been referred to a judge by the Registrar of Probate in accordance with s 17(2)(c) of the Administration and Probate Act 1969 (NT) (“Administration and Probate Act”) for determination of the application by Ty Owen Johnson, for probate of the will of the deceased.
The deceased died in India on 1 July 2020, at the age of 67. Shortly before her death, on 29 May 2020, while in India, the deceased made a will.
The deceased left property in the Northern Territory, including a house at 2 Myrtlewood Crescent, Zuccoli. The total value of her estate is said, in the affidavit of assets and liabilities filed with the application for probate, to be $502,987.85.
The will contains the following provisions which appear, on their face, to be contradictory.
I APPOINT my partner MANOJ ARETI … (“my Trustee”) as the executor and trustee of this will but in the event that he is unwilling to act as my Trustee I APPOINT my friend TY OWEN JOHNSON … (“my Trustee”) as the executor and trustee of this will.
…
4. I DIRECT my Trustee to pay from my estate: my debts.
my funeral and testamentary expenses;
and any duty or tax payable after my death. (sic)
5. I DIRECT that my partner MANOJ ARETI be entitled to the residue of my estate. Should my partner MANOJ ARETI predecease me or unwilling to execute my will then I DIRECT that my friend TY OWEN JHONSON (sic) be entitled to the residue of my estate.
…
7. I direct that all my assets to be sold and my estate be converted into cash and the net proceeds within 2years of my deathand should be divided as follows:
5% to my friend Ty Owen Johnson
95% to my partner Manoj Areti.
…
9. I direct that in the event of Manoj Areti’s demise prior to executing the will 95% proceedings will be donated to Blind Citizens Australia (BCA) in Melbourne.
10. Gifts to persons named as my executors and trustees are not conditional upon them acting as my executors and trustee.
The will appears to have been executed in accordance with the requirements of s 8 of the Wills Act 2000 (NT) (“Wills Act”). The will was made in India but s 46 of the Wills Act provides:
A will is properly executed if its execution conforms to the internal law in force in the place:
(a) where it was executed;
(b) that was the testator’s domicile or habitual residence either at the time the will was executed or at the testator’s death; or
(c) of which the testator was a national either at the date of execution of the will or at the testator’s death.
The will recites that Ms Cook’s residence at the time of making the will (about one month before she died) was 2 Myrtlewood Crescent, Zuccoli in the Northern Territory of Australia, so it suffices that the will was validly executed in accordance with the law of the Northern Territory.
Section 14 of the Administration and Probate Act provides that the Supreme Court of the Northern Territory has jurisdiction to grant probate of the will of any deceased person leaving property in the Northern Territory.
The will recites in clause 2:
I own a house located at 2 Myrtlewood Crescent, Zuccoli in the Northern Territory 0832, Australia, Mitsubishi ASX car and gold in Commonwealth Bank in Darwin with account number as 06414410236067.
The deceased’s partner, Manoj Areti is still in India, apparently unable to return to the Northern Territory because of Covid restrictions. He appears to have signed a document headed “RENUNCIATION OF PROBATE” which states:
I, Manoj Areti of HNO 5-8-999/35, Srinivas Nagar Colony, Kamareddy, Telangana 503111 in India, Entrepreneur declare –
1. I am one of the executors appointed by the will dated 29th May 2020 of GRACE COOK late of 2 Myrtlewood Crescent, Zuccoli in the Northern Territory of Australia, retired, who died on 1st July 2020.
2. I have not intermeddled in the estate of the deceased.
3. I renounce all rights to probate of the will and to all trusts, powers and authorities expressed by the will to be made or given to me.
PROMISED at Hyderabad
in Telangana of India
by Manoj Areti
on 14-08-2021 ………………………
Signature of Deponent
BEFORE ME
……………..
Advocate & NotaryAn indecipherable signature appears above “Signature of Deponent”. A signature appears below “Advocate & Notary” with a stamp “ATTESTED D. ANIL RAJU ADVOCATE & NOTARY” along with and address and registration details.
Section 28 of the Administration and Probate Act provides that where a person renounces probate of the will of which he or she is appointed an executor, the right of that person in respect of the executorship shall wholly cease, and the representation of the testator and the administration of his or her estate shall devolve as if that person had not been appointed executor. Section 29 provides that renunciation of probate by an executor who is also appointed as trustee under a will is also deemed to be a disclaimer of the trust contained in the will.
Ty Owen Johnson has applied for probate of the will. Among the documents filed in support of the application is an Affidavit of Assets and Liabilities. It sets out the assets and liabilities of the estate and contains the following paragraph:
3. The within statement under the heading “Persons Entitled” is a true statement showing the persons entitled to the assets of the deceased, a description of, and an estimate of the value of, their entitlements and, where a person entitled is a minor, their age.
In the attachment, under the heading “PERSONS ENTITLED”, Mr Johnson has put a table containing the following assertions:
Full name
Relationship if any, to deceased
Age if a minor
Description of entitlement
Est. or known value
Ty Owen Johnson
Friend
100% of the estate
$502,987.85
Mr Johnson’s claim to be entitled to 100% of the estate is apparently based on a letter of advice from the solicitor engaged to apply for probate on his behalf which advises Mr Johnson:
Clause 5 of the will says that if Mr Areti is unwilling to execute the estate, he forfeits his entitlement to the residue of the estate and that residue falls to you. Clause 7 of the will is not applicable.
Clause 10 of the will may appear to be in conflict with Clause 5. That clause is specific and the latter general. Therefore, the ordinary meaning of Clause 5 should prevail.
With respect, the advice is almost certainly wrong.
· Clause 7 of the will provides specific instructions as to how the deceased’s assets are to be dealt with. They are to be converted into cash and divided - 5% to Mr Johnson and 95% to the deceased’s partner, Manoj Areti.
· Clause 10 provides that the gifts to persons named as executors and trustees (ie Manoj Areti in the first instance and, if he is unwilling to act, Mr Johnson) are not conditional upon them acting as executors and trustees.
· It is difficult to know exactly what is intended by clause 5. (There are some indications that the first language of the drafter of the will may not have been English.) However, whatever it means, clause 5 purports to apply to “the residue of my estate” and “the residue” means what is left (if anything) after the payment of charges, debts, and bequests. That would presumably include the bequest in clause 7.
· The fact that Manoj Areti is intended to be the primary beneficiary under the will is reinforced by clause 9. If Manoj Areti dies before the will is “executed” – presumably meaning before it takes effect – 95% of the estate – presumably the 95% that would otherwise have gone to Manoj Areti - is given to a nominated charity.
· If clauses 5 and 7 are genuinely irreconcilable, then the rule of construction of last resort, known as “the rule of despair” is that where two clauses in a will conflict, the latter clause will prevail over the former. Under that rule of construction, clause 7 would prevail over clause 5.[1]
The above is by way of observation only, as this is an application for probate and not an application for construction of the will by the Court. On an application for probate, the Court is not concerned with questions of construction except insofar as is necessary for the purpose of deciding whether probate should be granted.[2] Once probate has been granted, the executor or a beneficiary may apply to the Court for a determination of a question of construction of the will.
From the material filed in support of the application for probate, the Court can be satisfied:
(a)that the deceased died leaving property in the Northern Territory;
(b)that she left a valid will which complies with the formal requirements in the Wills Act;
(c)that the first named executor in the will, Manoj Areti, has renounced probate of the will and so must be treated as though he was not named as executor;
(d)the applicant, Mr Johnson is the person named as executor in the will if Mr Areti renounces probate.
It would, therefore, in the ordinary course, be appropriate for probate of the will to be granted to Mr Johnson.
However, I do not think it is appropriate for Mr Johnson to be granted probate of the will unconditionally given that he has sworn an affidavit claiming to be entitled to 100% of the estate on the basis of very dubious advice.
In my view, probate should not be granted to Mr Johnson except on condition that he first sign an undertaking to the Court that:
(a)he will, within 14 days, file an originating motion seeking a declaration as to who is entitled to the assets of the estate on the correct construction of the will;
(b)he will, within a further 14 days serve that originating motion, the application for probate and supporting documents, and a copy of these reasons on Manoj Areti;
(c)he will take all necessary steps to have that matter of construction determined by the Court expeditiously; and
(d)he will not deal with the assets of the estate except in accordance with the Court’s determination.
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[1] Hardingham, Neave and Ford, The Law of Wills p 244; Gallagher v Adams (1887) 13 VLR 948 at 955 per Webb J
[2]Re Smith [1939] VLR 213, 221, 223 per O’Bryan AJ
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