Maddock v Registrar of Titles [2025] NTSC 41 | Case summary

[1] Tessa Ruth Abrams (the Applicant) makes application, by originating motion filed 16 October 2024 and summons on originating motion filed 16 October 2024, for the following orders:
1. Letters of Administration de bonis non adminstratis be granted to the Applicant;
2. A copy of the Will of Hugh Brown Craig (the deceased) being annexure A to the affidavit of Karla-Lee Goodman made 15 October 2024, be admitted to probate;
3. Costs of and incidental to this application be paid out of the deceased's estate;
4. Such orders as the Honourable Court deems fit.
[2] The Applicant filed and relied upon the affidavits of Karla-Lee Goodman (Ms Goodman) made 15 October 2024 and 9 May 2025, and the affidavits of Carolyn Felgate (Ms Felgate) made 10 October 2023, 27 January 2025 and 20 February 2025. I take those affidavits as read.
[3] The facts in respect to the application are set out in the various affidavits of Ms Felgate. Ms Felgate is an employee of Anglia Research Services (Anglia), which provides probate genealogy services to solicitors and public authorities to locate heirs of deceased estates. As part of its business, Anglia searches advertisements for lost heirs, and then identifies and locates those heirs to offer services to claim those potential inheritances. Ms Felgate has been employed by Anglia as a Private Client Manager since 2005. She also describes herself as a probate genealogist. Ms Felgate deposes to having undertaken training in respect to being able to locate and track down missing heirs, notably having undertaken in-house training to the standards set by the Association of Genealogists and Researchers in Archives (AGRA), a body located in the United Kingdom. Additionally, Ms Felgate is registered as a Tier IV Paralegal with the Professional Paralegal Register, a body also located in the United Kingdom.
[4] Ms Felgate deposes that in 2013 she located a website searching for heirs of a number of landowners of properties in the township of Southport in the Northern Territory, which had been advertised by the Public Trustee of the Northern Territory.[1] Certain properties had been sold by the Litchfield Council to recover unpaid rates, with the remaining unclaimed proceeds deposited with the Public Trustee. Ms Felgate deposes to having assisted a number of heirs to those properties to claim their rightful inheritances.
[5] In respect to this application, Ms Felgate deposes that Lot 178 Townsite of Southport was owned by the deceased and was one such property sold to recover unpaid Council rates.[2] Ms Felgate deposes that she was informed by the Public Trustee of the Northern Territory that approximately $69,000 in surplus had been left over after the sale of the property, and that before such funds could be released, Letters of Administration were required.
[6] According to Ms Felgate, on the basis of her research as set out in her various affidavits, the deceased was born on 7 May 1831 and died in England on 27 April 1885, having made and duly executed his last Will and Testament. On 14 May 1886 probate was granted to the executors, James Sinclair and Helen Beete Lloyd Craig (the deceased's wife). The deceased's wife survived her co-executor Mr Sinclair, but died on 8 July 1913 in England, leaving part of the estate of the deceased un-administered, namely the Southport property in Australia.[3] According to the affidavit of Ms Felgate, the deceased's wife died intestate.
[7] The deceased's Will, or a copy of it, is annexed to the affidavit of Ms Goodman made 15 October 2024, and appears to be a hand transcribed copy of the original Will, transcribed for the purpose of gaining probate.[4] Accompanying the Will is a copy of a probate document issued out of the Principal Registry of the Probate Division of Her Majesty's High Court of Justice, stating that the Will of the deceased was proved and registered, and administration of the personal estate of the deceased was granted by the Court. Ms Goodman deposes, by affidavit made 9 May 2025, that she was provided with the copy of the Will and probate document from Ms Felgate, who had informed her that she had obtained it from the website probatesearch.service.gov.uk, being the repository for the Probate Registry of England and Wales.
[8] Within the text of the Will reference is made to a Marriage Settlement indenture dated 8 September 1862 between the deceased and his wife. Although it was not a matter in evidence, as a matter of judicial notice, generally marriage settlements were historical arrangements whereby a trust of assets was established by the families of a bride and groom. Trustees were established as the legal owners of the assets with the bride and groom the beneficial owners during their lifetime. After death, ownership of the assets would then descend to their children. Marriage settlements are little used today for various reasons including the ability of married women to own property in their own right following the enactment of Married Women's Property Act 1882 (UK). Ms Felgate deposes that due to the time which has lapsed, a copy of the Marriage Settlement indenture could not be found. In respect to the disposition of the deceased's estate, the Will appears to create a testamentary trust, appoint three trustees, adopts for that trust the same terms and conditions as provided for in the Marriage Settlement indenture, and then bequeaths all of the deceased's real and personal property to the trust, including the real property in Australia. For the purpose of this application, which is to prove the Will and appoint an Administrator de bonis non administratis, I am willing to accept that the Southport property formed part of the deceased's un-administered Estate which had not been transferred to trustees of the testamentary trust, the terms of which are lost in time.
[9] Ms Felgate's affidavits depose as to her genealogical research in tracing the various heirs of the deceased. The deceased had eight children, three of whom predeceased the deceased's wife and died without spouse or issue, and in the case of one, no records can be located at all. Through that research the Applicant has been identified as the great-grand daughter of the deceased. The various birth and death certificates in evidence disclose that the Applicant's father was Frank Barrington Craig, whose father was Frank Alexander Craig, whose father was Hugh Brown Craig, the deceased. I am satisfied that the Applicant is one of the nearest living relatives of the deceased. On the basis of Ms Felgate's affidavit deposing an unsuccessful attempt by the Applicant to obtain Letters of Administration in the United Kingdom, I am satisfied that the Applicant has made genuine attempts to seek administration and is motivated to complete the administration of the estate. I am satisfied that, if Letters of Administration are granted, the Applicant will proceed to administer the estate in accordance with the usual obligations imposed on a personal representative.
[10] In respect to the Will, as noted above, a copy of the Will is annexed to the affidavit of Ms Goodman, along with an accompanying Court probate document. On its face the Will was admitted to Probate in the United Kingdom. As noted above, the Will appears to be a hand transcribed copy of the original Will and does not bear signatures of the testator or witnesses. I am willing to accept, for the purpose of this application, that the copy of the Will annexed to the affidavit of Ms Goodman represents a true copy of the Will of the deceased. This is not necessarily a case of a lost Will, as I accept that in order to obtain probate in the United Kingdom, the Will would need to have been proved (and was) and therefore issues as to potential revocation (and the presumption of revocation) prior to administration being granted should not arise. If that is not sufficient, in respect to a grant of administration in this jurisdiction, on the evidence I find that the presumption of revocation has been rebutted. Further, lest there be any doubt as to the Will conforming to contemporary legislative requirements, I accept that it expresses the testamentary instructions of the deceased notwithstanding it is not in accordance with the requirements of the Wills Act 2000 (NT).[5]
[11] On the basis of the evidence, I accept that the estate of the deceased, Hugh Brown Craig, has been left un-administered. The executors of the deceased's estate, as expressed in his Will, are also deceased. At the relevant time the last surviving executor, Helen Beete Lloyd Craig, the wife of the deceased, died intestate. Where an executor, or last surviving executor, dies intestate without finalising the administration of an estate, the office of executor devolves upon the executor's executor by operation of law[6], otherwise known as the chain of representation. As the evidence reveals that the deceased's wife died intestate, no chain of representation exists, and, as a result, administration of the deceased's estate may only be completed by a grant of administration de bonis non administratis. I am satisfied, on the basis of the evidence, that the Applicant is the great-grand daughter of the deceased. For the purposes of s 22 of the Administration and Probate Act (NT) the Applicant is considered the next of kin. I am satisfied the Applicant is an appropriate person to be appointed to administer the deceased's estate.
[12] I therefore make the following orders:

[4] Although no direct evidence was given as to why that was the case, it appears to be the practice in respect to very old applications for probate that the Court copies comprised handwritten copies of the original Will, not surprisingly in times before photocopying was available. A similar practice appears to have continued into more recent times, as evinced by some copies of Wills annexed to Ms Felgate's affidavit, where the Will deposited with the Court for probate constitutes a typed transcribed copy of the Will.

Maddock v Registrar of Titles

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