The Estate of Wilson [2020] NTSC 29 (1 June 2020)

Deed of Family Arrangement purports to contract out of any entitlement to make application under the Family Provision Act 1970 (NT) - Deed of Family Arrangement void and unenforceable for that reason unless the Court makes an order under s 8 of the Family Provision Act 1970 (NT) authorising distribution on the terms proposed in the Deed of Family Arrangement - letters of administration should not be granted in the circumstances

Administration and Probate Act 1969 (NT) ss 17(2)(c), 66, 22(1)(b)

Family Provision Act 1970 (NT) ss 8(2), 9(1)

Wills Act 2000 (NT) s 14(1)

Albany v Albany [2010] NTSC 25, Bartlett v Coomber [2008] NSWCA 100, Daebritz v Gandy [2001] WASC 45, Edgar v Public Trustee of the Northern Territory & Anor [2011] NTSC 05, KR & LAR v Public Trustee of the Northern Territory [1996] NTSC (16 May 1996), Lieberman v Morris (1944) 69 CLR 69, Simonetto v Dick [2014] NTCA 4, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, referred

In the Estate of Wilson [2020] NTSC 29

ON REFERENCE FROM THE REGISTRAR OF THE SUPREME COURT OF THE NORTHERN TERRITORY

[1] This application has been referred to a judge by the Registrar for Probate in accordance with s 17(2)(c) of the Administration and Probate Act 1969 (NT) for determination of the application by Michelle Ann Wilson, the daughter of the deceased, for letters of administration.

[2] The deceased, David John Wilson died on 21 December 2019. He is survived by his wife, Premilita Manto Salvajan, his two children, Michelle Ann Wilson and Chantelle Marie Wilson, and his two step-children (the children of his deceased wife Beverley Lorraine Anderson), Natasha Louise Guse and Jacinta Lea Gray.

[3] According to the affidavit of assets and liabilities, the estate has a net value of $390,991.49.

[4] On 30 October 2014, the deceased made a will in which he left his estate to his then wife (referred to in the will as his partner) Beverley Lorraine Anderson. The will provided that if Ms Anderson did not survive the deceased:

... I give the residue of my estate to those of my children Michelle Ann Wilson and Chantelle Marie Wilson and to those of my Partner's children Natasha Louise Guse and Jacinta Lea Gray who survive me to take as tenants in common in equal shares.

[5] Ms Anderson died before the deceased on 26 December 2014.

[6] The deceased later married Premilita Manto Salvajan in the Philippines on 18 July 2016. The marriage is recognised as valid in Australia pursuant to s 88D of the Marriage Act 1969 (Cth).

• (a) Section 88D(1) provides that, subject to that section, a marriage to which Part VA of the Act[1] applies, is valid.

• (b) Section 88C provides (inter alia) that Part VA applies to every marriage solemnised in a foreign country where, under the local law, the marriage was, at the time when it was solemnised, recognised as valid.

• (c) The subsequent sub-sections in s 88D go on to provide exceptions and qualifications to the recognition of foreign marriages in s 88D(1), none of which apply to the present case.

• (d) Evidence that the marriage was performed and that it was recognised as valid under the law of the Philippines has been provided in the form of a Certificate of Marriage issued by the Office of the Civil Registrar General of the Republic of the Philippines, annexed to the affidavit of the applicant, Michelle Ann Wilson.

• (e) Under s 88G(1) of the Act, a certificate purporting to be the original certificate[2] of a marriage is prima facie evidence of the facts stated in the document (ie that the marriage occurred) and of the validity of the marriage to which the document relates, provided the issuing body was a "competent authority" [s 88G(2)]. A "competent authority" is defined, inter alia, as one competent under the law in force in that country to issue the original (or a certified copy) of a certificate, entry or record of a marriage solemnised under the law of that country [s 88G(3)].[3]

[7] The will of 30 October 2014 was revoked by the deceased's marriage to Ms Salvajan, [Wills Act 2000 (NT) s 14(1)] with the result that the deceased died intestate.

[8] Under s 66 and Schedule 6 Part 1 of the Administration and Probate Act 1969 (NT), the persons entitled to a share in the estate on intestacy are the wife, Ms Salvajan, and the two daughters, Michelle and Chantelle Wilson. The wife is entitled to the prescribed amount of $350,000 plus one third of the balance of the net estate and the two daughters are entitled to the balance.[4] If the figures in the affidavit of assets and liabilities are accurate, that would not amount to very much - approximately $13,000 each.

[9] By a Deed of Family Arrangement dated 5 March 2020 ("the Deed"), the wife, Ms Salvajan, the two daughters, Michelle and Chantelle Wilson and the two step-daughters, Natasha Guse and Jacinta Gray have agreed that the estate should be divided among the five of them, each receiving 20% of the net estate. The Affidavit of Assets and Liabilities recites that each share is estimated to be worth $78,198.30.

[10] The Deed recites that each party acknowledges that she has had the opportunity to seek independent legal advice in relation to the contents of the Deed,[5] but does not say whether any of them availed themselves of that opportunity. The recitals to the Deed recite that the Administration and Probate Act 1969 (NT) sets out the parties' entitlement to the estate. Clause 3.2(a) of the Deed provides:

The parties hereby acknowledge that the instructions, devises, bequests and appropriations outlined in clause 1 [which sets out the division of 20% to each of the 5 of them] are not all in accordance with the terms of the Administration and Probate Act (NT) and are in effect a gift by Premilita of a share of the residue of the deceased's estate, and Premilita, Chantelle, Natasha and Jacinta hereby jointly and severally forever release and discharge Michelle in her capacity as administrator and trustee, from all claims and demands whatsoever which they and any persons claiming under, through or on behalf of them or either of them may have or claim to have against the estate of the deceased ...

[11] However, the Deed does not recite what shares the parties would be entitled to under the provisions of the Administration and Probate Act 1969 (NT).

[12] In clause 5.1 of the Deed, the parties acknowledge and agree that the distribution of the Estate will occur in accordance with the terms of the Deed and, in consideration of each party entering into the Deed, each party renounces her right to her entitlement under the Administration and Probate Act 1969 (NT) and her right to make a claim under the Family Provision Act 1970 (NT).

[13] There is no application on foot under the Family Provision Act 1970 (NT).

[14] Time has not yet begun to run. (Under s 9(1) an application for an order under s 8 shall be made within a period of 12 months after the date on which administration in respect of the estate of the deceased person has been granted. Section 9(2) allows for extensions of time.)

[15] Section 8 of the Family Provision Act 1970 (NT) provides that:

upon application made by or on behalf of a person entitled to apply to the Court under section 7, if the Court is satisfied that adequate provision is not available, under the terms of the will of a deceased person or under the law applicable on the death of the person as an intestate or under the will and that law, from the estate of the deceased person for the proper maintenance, education and advancement in life of the person by whom, or on whose behalf the application is made, the Court may, in its discretion and having regard to all the circumstances of the case, order that such provision as the Court thinks fit be made out of the estate of the deceased person.

[16] The wife and the two daughters would all be eligible claimants under the Family Provision Act 1970 (NT).[6] The step-daughters would be eligible claimants provided they were being maintained by the deceased immediately before his death.[7] I do not know if this is the case or how old they are.

[17] Any agreement to compromise a family provision claim is void as being contrary to public policy, but the terms of such an agreement may be taken into account by the court in the exercise of its discretion in an application for provision under the legislation.[8]

1. Family provision claims can only be disposed of by court order, and this requirement cannot be contracted out of. This applies whether or not there is an application under the Family Provision Act 1970 (NT) on foot at the date of the purported compromise.[9]

[19] Hence, the Deed can only have effect if the court exercises its powers under s 8 of the Family Provision Act 1970 (NT) to make an order in accordance with the terms of the Deed.[10] Just as the court may decline to make an order under s 8 of the Family Provision Act 1970 (NT) if the circumstances warrant, the court may decline to approve an agreement to compromise such a claim.[11]

[20] When determining whether to make an order in terms of the Deed, the court must apply the same principles that apply to the making of any order under s 8 of the Family Provision Act 1970 (NT).

[21] When determining such an application, the court adopts a two-stage process as follows.[12] First the court considers the jurisdictional question: has adequate provision been made under the will (or in this case under the law applicable on the death of the person as an intestate) for the proper maintenance, education and advancement in life of an applicant. The relevant time for considering the jurisdictional question is the date of death of the deceased. If the jurisdictional question is not answered in the negative, the application must be dismissed.

[22] If the jurisdictional hurdle is passed, the court then goes on to consider the discretionary question: what provision, if any, ought to be made from the estate for the proper maintenance, education and advancement of the particular applicant. The relevant time for considering the discretionary question is the date of the decision.

[23] In considering the discretionary question, the court must consider an applicant's circumstances including her needs and her ability to meet those needs from her own resources. It must also consider the value of the estate and the needs (and resources) of other potential applicants and the beneficiaries who would otherwise be entitled to share in the estate under the terms of the will or, as here, on intestacy.[13]

[24] The applicant is an eligible person to whom letters of administration of the estate may be granted.[14] In addition, the others who would be entitled to a distribution of the estate on intestacy (the wife and the other daughter), as well as the step-daughters, have consented to her making application for administration of the estate.[15] It would, therefore, in the ordinary course, be appropriate for her to be granted letters of administration.

[25] However, I do not think it is appropriate for her to be granted letters of administration of the estate in the present circumstances where her expressed intention is to distribute the estate in the proportions set out in the Deed rather than as prescribed in the Administration and Probate Act 1969 (NT) on intestacy, and the Deed is void and unenforceable (at least until an order of the court is made under s 8 of the Family Provision Act 1970 (NT) permitting a distribution in accordance with the Deed).

[26] This Court is not in a position to consider whether to approve the Deed and to make an order to that effect without the following additional information:

• (a) whether the step-daughters are eligible to make claims under the Family Provision Act 1970 (NT) (ie whether they were being supported by the deceased immediately before his death);

• (b) information about the personal and financial circumstances of each of the wife, the daughters and (if eligible), the step-daughters at the date of death of the deceased sufficient to enable the Court to determine the jurisdictional question (set out at [21] above) in relation to each of them; and

• (c) information about the needs of each of the eligible claimants and their ability to meet those needs out of their own resources sufficient to enable the Court to make a determination of the discretionary question (set out at [22] and [23] above) in relation to each eligible claimant.

[27] Given that the terms of the Deed are so manifestly unfavourable to the wife, Ms Salvajan, notwithstanding the terms of Recital G and clause 3.2 of the Deed (referred to at [10] above), I also have some concern as to whether she has full knowledge of the amount of her entitlement on intestacy and whether she has obtained independent legal advice, as distinct from having an opportunity to do so.

[28] If the parties want the applicant to be granted letters of administration of the estate with authority to distribute the estate in accordance with the terms of the Deed, then it will be necessary for an application to be made to the Court under s 8 of the Family Provision Act 1970 (NT) for an order to that effect, and for the information set out at [26] above to be provided to enable that application to be determined.

[29] I am conscious that the estate is of modest value and that the legal costs involved in making such an application may be substantial. If the applicant, Ms Michelle Wilson, were to undertake to distribute the estate in accordance with the provisions of the Administration and Probate Act 1969 (NT) on intestacy (set out at [8] above), then she could be granted letters of administration on those terms and, after the estate has been so distributed, there would be nothing to prevent Ms Salvajan, if she wished, from making gifts to the daughters and step-daughters to achieve what the parties sought (and failed) to accomplish in the Deed.

[1] Part VA of the Act is headed "Recognition of foreign marriages".

[2] or a certified copy of such a certificate

[3] There is no reason to doubt that the Office of the Civil Registrar General of the Republic of the Philippines is a "competent authority". There is no issue in the case concerning the validity of the marriage. All parties with a potential interest in the estate are agreed that Ms Salvajan was the wife of the deceased and have set this out in Recital B of the Deed of Family Arrangement referred to below.

[4] excluding personal property which goes to the wife

[6] Family Provision Act 1970 (NT) s 7(1)(a) and (b)

[7] ibid ss 7(1)(d) and 7(2)

[8] Daebritz v Gandy [2001] WASC 45 at [10] quoting from Dr A Dickey: Family Provision After Death, at 188 - 189; Cutting v Public Trustee for the Northern Territory (No 2) ("Cutting") [2018] NTSC 51 at [90]

1. [9] Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69; Albany v Albany [2010] NTSC 25; (2010) 27 NTLR 89; Cutting at [82], [89] - [90]

[10] Bartlett v Coomber [2008] NSWCA 100 at [84] - [86]; Cutting at [87] - [88]

[12] Simonetto v Dick [2014] NTCA 4 [3], applying Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 - 211. See also KR & LAR v Public Trustee of the Northern Territory [1996] NTSC (16 May 1996) at 5 - 7; and Cutting at [101]

[13] Edgar v Public Trustee of the Northern Territory & Anor [2011] NTSC 05 at [46], [52] and [54]

[14] Administration and Probate Act 1969 (NT) s 22(1)(b)

[15] Clause 3.1 of the Deed; Each of them has also signed a Notice of Consent which has been filed with the Registrar of Probate.