The Estate of Carmelita Mary Sceney [2013] NTSC 82

 

PARTIES:                                         THE ESTATE of CARMELITA MARY SCENEY

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          143 of 2013 (21334424)

 

DELIVERED:                                   4 December 2013

 

HEARING DATES:                           11 November 2013

 

JUDGMENT OF:                              HILEY J

 

CATCHWORDS:

 

SUCCESSION – probate - grant on presumption of death - leave to distribute the estate - reference by Registrar

 

Administration and Probate Act 1969 (NT) s 15, s 16

 

REPRESENTATION:

 

Counsel:

    Applicants:                                  M Yates

 

Solicitors:

    Applicants:                                  De Silva Hebron

 

Judgment category classification:   C

Judgment ID Number:                      Hil1312

Number of pages:                            8


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

The Estate of Carmelita Mary Sceney [2013] NTSC 82

No.  143 of 2013 (21334424)

 

                                                     THE ESTATE of CARMELITA MARY   SCENEY

 

CORAM:    HILEY J

 

REASONS FOR JUDGMENT

 

(Delivered 4 December 2013)

 

Introduction

[1]       On 4 December 2013 I made orders for the grant of probate of the will of Carmelita Mary Sceney (Mrs Sceney) dated 1 April 2009 (the Will) on presumption of death under s 16 of the Administration and Probate Act 1969 (the Act).  These are my reasons.

Application

[2]       On 6 August 2013 Yvonne Marie Dunn and Roger William Sceney (the Applicants) applied for probate of the Will to be granted to them. 

[3]       A number of affidavits were filed.  These included an Affidavit of Executor and an Affidavit of Assets and Liabilities each sworn by the Yvonne Marie Dunn on 12 July 2013, an Affidavit of Executor and an Affidavit of Assets and Liabilities each affirmed by Roger William Sceney on 18 July 2013, an Affidavit of Publication and Search affirmed by Kate Elizabeth Frost on 6 August 2013, an Affidavit of Death sworn by the Yvonne Marie Dunn on 20 September 2013 and an Affidavit of Death affirmed by Roger William Sceney on 24 September 2013.

[4]       The Applicants, Yvonne Marie Dunn and Roger William Sceney, were appointed substitute executors under the Will.[1]  Yvonne is Mrs Sceney’s sister and Roger is the brother of her husband, Stuart James Sceney (deceased).[2]

[5]       The Registrar of the Court referred the application to the Court under s 17(2) of the Act.

[6]       At the hearing on 11 November 2013 Ms Yates appeared for the Applicants.  Yvonne Marie Dunn attended the hearing and provided answers to a number of questions raised by the Court.

[7]       Ms Yates confirmed that the Court’s jurisdiction under s 16 of the Act was being invoked and that orders were being sought:

(a)     for the grant of probate of the Will upon evidence supporting the presumption of Mrs Sceney’s death – ss 15 & 16; and

(b)     for leave to distribute the estate – s 16(1)(c).

Presumption of death

[8]       On 1 April 2013 a light aircraft VH-EFB departed from Bullo River Station.  Its destination was Darwin.  The passengers in the aircraft were Stuart James Sceney (who owned the aircraft), his wife Carmelita Mary Sceney and 2 of their 3 daughters, Mekdes Seifu Sceney (born 13 January 1998) and Kal-Kidan Seifu Sceney (born 8 August 2000).

[9]       Following searches by members of the Northern Territory Disaster Victim Identification Team the bodies of Stuart, Kal-Kidan and Mekdes were recovered from Anson Bay.  However the body of Mrs Sceney has not been found. 

[10]    Detective Senior Constable Unwin was responsible for compiling a report to the Coroner, and provided the following information in an email to Roger William Sceney.[3]  He said that an autopsy performed on the bodies that were recovered indicated significant un-survivable injuries.  He also said that “the medical evidence obtained from the scene also indicated that Carmelita suffered similar or more significant injuries [than the others], indicating that she had no chance of survival.”  He said that based on that information the Deputy Coroner issued a death certificate, which was registered on 30 April 2013.

[11]    In their affidavits sworn in September 2013 each of the Applicants deposed that, based on the information provided to them by the Northern Territory Police Service and the thorough searches conducted of the plane crash site, and given that they have received no contact or communication from Mrs Sceney, they “believe that Mrs Sceney passed away in the plane crash that day”.

[12]    I am satisfied that the evidence is such that Mrs Sceney may be presumed to be dead.

Distribution of the Estate

[13]    I am satisfied that the Will was the last will of Mrs Sceney and was not revoked.  She did not remarry after she made the Will. 

[14]    The Will was effective to dispose of her entire estate.[4]  Her estate included property, both real and personal, within the Northern Territory.

[15]    Because her husband, Stuart James Sceney, did not survive her by 30 days, the “alternative provisions” in clauses 8 to 13 of the Will apply.

[16]    Under clause 9.1 of the Will Ms Sceney left various personal effects and furniture including any motor car to her sister Yvonne Marie Dunn and her husband’s brother Roger William Sceney in equal shares. 

[17]    Under clause 10 of the Will Mrs Sceney left the balance of her estate to be held in trust for such of her daughters Jamila Isabel Longstaff (born 26 August 1987), Mekdes Seifu Sceney and Kal-Kidan Seifu Sceney who survived her and attain the age of 28 years, and to their children in the event that their parent did not survive her and attain the age of 28 years.  As both Mekdes Seifu Sceney and Kal-Kidan Seifu Sceney died in the accident and neither had children, the whole balance of the estate will be held in trust for Jamila Isabel Longstaff until she turns 28.  (The Will contains detailed provisions concerning the powers and functions of the executors in relation to such a trust.)  The balance of the estate includes interests in real estate and cash and is estimated to be worth more than ten times the value of the personal effects and furniture left under clause 9.1.

[18]    Prior to her marriage to Stuart James Sceney, Mrs Sceney was married to Wayne David Longstaff, and prior to that to Peter John Goodrem.  Jamila is the adopted daughter of Mrs Sceney’s marriage to Wayne Longstaff.  Mrs Sceney had no other children apart from Jamila, Mekdes and Kal-Kidan.[5]

[19]    Mrs Sceney’s mother, Marjorie Liddy, is alive, but her father is not.[6]  Her mother is aware of Mrs Sceney’s death and of the application for probate.[7] Mrs Sceney is also survived by 4 brothers and 3 other sisters.[8]

[20]    Notice of the intended application for probate was published in the Northern Territory News on 25 May 2013.  As at 6 August 2013 there was no evidence of a caveat having been lodged and no election was filed under Part VII of the Public Trustee Act.[9]

[21]    In order to ensure that any potential claimants or objectors had a further opportunity to assert a claim upon the estate I ordered the Applicants to arrange for the publication of a Notice of Intended Distribution of Estate in accordance with Form 88ZF under the Supreme Court Rules within 7 days of the issue of the grant of probate and to post a copy of the grant of probate and of that notice to the last known address of each of Mrs Sceney’s siblings.[10]

[22]    In light of the fact that a significant part of the estate would remain in trust and could not be distributed in any event before 26 August 2015 when Jamila turns 28, I considered that the Applicants should be permitted to distribute the estate after the expiration of the period specified in the Notice of Intended Distribution of Estate.  In other words the Applicants will be at liberty to distribute the personal effects and furniture under clause 9.1 of the Will.

[23]    I also considered it appropriate to require the Applicants to arrange for the publication of a further Notice of Intended Distribution of Estate at least 2 months prior to 26 August 2015 when the balance of the estate can be distributed to Jamila, subject to any legitimate claim or objection in the meantime.

Orders

[24]    Accordingly on 4 December 2013 I made the following orders:

1.       Probate of the will of Carmelita Mary Sceney, late of 445 Elizabeth Valley Road, Noonamah in the Northern Territory of Australia, Education Department Executive, formerly Office Manager dated 1 April 2009, be granted on the presumption of her death, to the Applicants, Roger William Sceney of 187 Bambra Road, Caulfield South in the State of Victoria, Graphic Designer/Production Manager and Yvonne Marie Dunn of 13 Beroona Court, Karama in the Northern Territory of Australia, Indigenous Outreach Manager.

2.       The Applicants be granted leave to distribute the estate after the expiration of the period specified in the notice referred to in Order 3 below.

3.       Within 7 days of issue of the Grant of Probate, the Applicants shall cause to be published in the Public Notices section of the Northern Territory News, a Notice of Intended Distribution of Estate in accordance with Form 88ZF as provided under the Supreme Court Rules.

4.       Within 7 days of issue of the Grant of Probate, the Applicants shall cause a letter to be posted by Registered Post to the last known address of each sibling of Carmelita Mary Sceney which annexes a copy of the Grant of Probate and a copy of the Notice of Intended Distribution of Estate in accordance with Form 88ZF as provided under the Supreme Court Rules.

5.       The Applicants shall cause a notice to be published in the Public Notices section of the Northern Territory News, a further Notice of Intended Distribution of Estate in accordance with Form 88ZF as provided under the Supreme Court Rules on or before a date which is no sooner than a date which is three months prior to 26 August 2015 and no later than a date which is two months prior to 26 August 2015.

 

 

…………………………….



[1] Clause 2.2 of the Will.  Under clause 2.1 of the Will Mrs Sceney had appointed her husband Stuart James Sceney to be her executor, and stated that if he was unable to act as her executor the following provisions of her will would apply instead.

[2] This was confirmed by Yvonne Dunn during the hearing on 11 November 2013.

[3] Email of 2 September 2013 from Detective Senior Constable Matthew Unwin at Northern Territory Police to Roger William Sceney, annexed to the Affidavit of Roger William Sceney affirmed 24 September 2013.

[4] Clause 12 of the Will.

[5] Death certificate.  This was also confirmed by Yvonne Marie Dunn during the hearing on 11 November.

[6] Death certificate.

[7] This was confirmed by Yvonne Marie Dunn during the hearing on 11 November.

[8] This was confirmed by Yvonne Marie Dunn during the hearing on 11 November.

[9] Affidavit of Kate Elizabeth Frost affirmed 6 August 2013.

[10] See s 16(1)(e) of the Act.