Court settles Norfolk Island will debate

Pensioner William Kenneth Green lived a simple life on Norfolk Island for 30 years but his death in 2009 has sparked a legal debate about his estate.

The Supreme Court of Norfolk Island was asked to decide an application brought by the Deputy Curator of Deceased Estates as to whether the 66-year-old’s will was valid, and if so, whether his two biological children were entitled to his estate.

In a 22-page judgment delivered last Thursday, Chief Justice Besanko found the will was not valid and that Mr Green’s “issue”, Tracy and Peter Edwards, were not entitled to inheritance under intestacy because they had been formally adopted by their mother’s new partner.

Chief Justice Besanko considered whether the single-page, handwritten document purporting to be Mr Green’s final will, dated 25 January 2005, was executed in accordance with the requirements of Section 7 of the Wills Act 1973 (NI), and if not, whether the court had the power (and should exercise it) to declare the document a valid will despite the non-compliance.

He explained that if the court declared the document to be a valid will according to the law of Norfolk Island, then the whole of the estate would be distributed to Tracy as the sole named beneficiary. If the court declared it was not valid will, then the estate would be distributed on intestacy.

The executor of the will and a witness deposed that Mr Green intended the will to be his last will and testament, and that they were both present when he signed it.

However, only the witness signed the will, contrary to s 7(1)(d) of the Act which prescribes that two witnesses “must each attest that signing of the will … and subscribe the will in the presence of the testator and of the other witness or witnesses”.

The Deputy Curator submitted the provision had not been complied with.

“She accepts that that result seems to frustrate the intention of the deceased because it seems clear that the deceased intended the handwritten document to be effective and to leave his estate to his daughter,” Chief Justice Besanko said.

He said, however, that unlike legislation in various Commonwealth states and territories, there was no provision in the Act which gave at the time the Court the power to admit to probate a document executed in circumstances in which there had been substantial, but not strict, compliance with the requirements of s 7.

The Wills Act 1973 (NI) was repealed in 2012 and replaced with the Wills Act 2012 (NI), which grants the court the power to dispense with the formal requirements of the Act in certain circumstances, he said.

He said, however, that the relevant section in that Act does not apply in the case of a person who died before 1 January 2013, and therefore the estate must be distributed on intestacy under the Administration and Probate Act 2006 (NI).

Chief Justice Besanko then considered whether the legislation of New Zealand or Norfolk Island determined the succession rights of adopted children.

Birth certificates recorded Peter, who was born in 1967, and Tracy, who was born in 1968, being given their mother’s maiden name, Simon, with no record of their father.

When their mother separated from the deceased in 1969, and married Louis John Edwards that year, the children were formally adopted in New Zealand by him in 1971 and renamed Peter Rameka Edwards and Tracy Leeanne Huia Edwards.

Chief Justice Besanko said the Adoption of Children Act 1932 (NI) did not provide for the recognition in Norfolk Island of adoption orders made in other jurisdictions.

He compared that statute with the Adoption Act 1955 (NZ) as to the consents required before an adoption order may be made.

“The difference between the Norfolk Island Act and the New Zealand Act in this respect is that in the case of the Norfolk Island Act, the consent of the biological father of the child was required unless the court dispensed with it, whereas in the case of the New Zealand Act, as (the children’s mother) never married the deceased, the latter’s consent was not required unless the court considered it expedient to require it,”  he said.

He subsequently ruled that the adoption orders made under the New Zealand legislation were effective adoption orders under the Adoption of Children Act 1932 (NI), and so, the two children were not entitled to the estate on intestacy.

“The adoption order has the effect that the adopted child is regarded in law as the child of the adoptive parents and ceases to be regarded in law as the child of the birth parents,” he said.

Chief Justice Besanko ruled the estate – a house and land on Norfolk Island worth about $125,000 to $145,000 and a term deposit of $125,908 – be distributed to the deceased’s sister as his only eligible next of kin.

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