Estate of Piper

[2021] NZHC 534

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000395

[2021] NZHC 534

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of an application to validate a will of Olive Ruby Piper

BETWEEN

PUBLIC TRUST

Applicant

Hearing:	On the papers
Judgment:	16 March 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 16 March 2021 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Thomas Dewar Sziranyi Letts, (Joshua Pietras), Lower Hutt

Re Estate of Olive Ruby Piper [2021] NZHC 534 [16 March 2021]

Introduction

[1]                 The applicant, the Public Trust, has filed an originating application seeking an order declaring that a document referred to in an affidavit of Danielle Neru dated 9 March 2021 is the last will and testament of the deceased, Olive Ruby Piper. It also seeks to dispense with service of the application on the beneficiaries named in the document and an order appointing it as executor and trustee of the deceased’s estate.

[2]                 The application is brought pursuant to s 14 of the Wills Act 2007. That section applies to a document that appears to be a will but does not comply with s 11 of the Act. This Court can make an order declaring the document a valid will if it is satisfied that the document expresses the deceased’s testamentary intentions. The Court can consider the document, evidence in relation to its signing and attestation, evidence in relation to the deceased’s testamentary intentions and evidence of statements made by the deceased.

Background

[3]                 The deceased’s last formal will is dated 7 March 2011. She appointed the Public Trust as her executor and trustee. She bequeathed $50,000 to each of her three nephews and directed that the residue of her estate was to be divided into five equal shares, one share going to each of her five siblings.

[4]                 The deceased contacted the Public Trust on 6 March 2020 to arrange an appointment in regard to her will. The Public Trust sent a proforma response but did not deal with the deceased’s request promptly. Rather it arranged a telephone consultation with the deceased on 23 March 2020.

[5]                 On 18 March 2020, the deceased sent the Public Trust a list of the prospective beneficiaries she wanted to include in her will. The list named the deceased’s three nephews and her five siblings. It did not however specify what share or shares each was to take.

[6]                 The telephone consultation proceeded on 23 March 2020. Ms Neru says that she took steps to confirm the deceased’s identity. She says that the deceased advised

her that she was close to her three nephews and that she wanted each of them and her five siblings to receive an equal share of her residuary estate. The deceased also wanted to gift a martial arts book to her former martial arts teacher.

[7]                 Ms Neru did not have any concerns about the deceased’s “mental capacity”. She considered that the deceased was articulate and that her instructions were well reasoned. Ms Neru has also deposed that the deceased did not indicate any urgency in completing her new will, or advise that she was suffering from any health issues.

[8]                 Ms Neru made handwritten notes of her discussions with the deceased. Unfortunately, Ms Neru has destroyed those notes. She says that she destroyed them because the information in the notes “had already been populated in Public Trust’s will system”.

[9]                 On 30 March 2020, the deceased sent an email to the Public Trust advising that she had forgotten to mention that she owned shares in a number of public companies. Ms Neru replied, confirming that she would send her a draft of the will once it had been approved by the Public Trust’s legal team.

[10]             The draft will was also prepared on 30 March 2020. On the same day it was sent to the Public Trust’s legal team for approval. It was promptly approved on 31 March 2020.

[11]             The draft will was not sent to the deceased until 22 April 2020, together with an invoice for preparing the draft. The draft was sent by email. The email contained the following:

Our recent discussion and next steps

Many thanks for talking with me on the 23/03/2020. This email summarises what we discussed and confirms what we need to do next.

If there’s anything in here that you’d like to ask me about, or you think you need to provide me with more information, please give me a call on …

Our discussion summary

During our discussion we talked about your need to look at providing for your family for the future.

…

Next steps

It’s important that you let me know if any of the circumstances we spoke about in our meeting change, or if you think of anything else that may be relevant to the recommendations we’ve made. This will help us make sure that we’re giving you the best possible advice.

Before we send your Will for signing could you please

·Check the draft document attached to this email carefully to ensure that all details are correct (including the spelling of all names), if anything is incorrect we may not be able to undertake the signing as the documents will need to be prepared and checked again.

·…

Once you confirm you are happy with your Will we will look to have the original sent to you for completion.

[12]             The deceased did not respond. Nor did the Public Trust follow up on the matter.

[13]The deceased passed away on 3 July 2020 without executing the draft will.

The Estate – differences between the draft will and the 2011 will

[14]The estate is valued at approximately $1.7 million.

[15]             If the draft will is validated, the nephews and siblings will be affected as follows:

(a)the deceased’s three nephews will each receive a one eighth share of the estate (approximately $287,500 each) as opposed to $50,000 which each receives under the 2011 will;

(b)the deceased’s five siblings will each receive a one eighth share of the estate as well, as opposed to the one fifth share (approximately

$430,000) of the residue which each receives under the 2011 will.

[16]             There is no specific bequest of the martial arts book in the 2011 will. It is bequeathed in the draft will.

[17]             All named beneficiaries under the 2011 will and under the draft will are aware of the application being made and all have provided their written consent to it.

Analysis

[18]             Section 14 operates to save documents where the will-maker has expressed completed testamentary wishes but did not follow the formal requirements prescribed by law. There are four requirements before the section can be applied:

(a)the document it is sought to validate must appear to be a will;

(b)the document must not comply with s 11;

(c)the document must have come into existence in or out of New Zealand; and

(d)the Court must be satisfied that the document expresses the deceased’s testamentary intentions.

[19]             The first three requirements are met in this case. The document it is sought to validate is in writing; it is neither signed nor attested; it came into existence in New Zealand. The fourth requirement is more problematic. Great care must be taken to ensure that what is claimed to be an expression of a will-maker’s wishes is in fact a genuine expression of those wishes.1 Here, I am not persuaded, on the balance of probabilities, that the document prepared on 30 March 2020 and forwarded to the

1      Re Estate of Beaumont [2013] NZHC 2719 at [11].

deceased on 22 April 2020, necessarily expresses the deceased’s testamentary intentions.

[20]             While there have been several decisions in which documents prepared on behalf of deceased will-makers have been validated, in each case, the Court could be confident that the document did represent the deceased’s testamentary intention. For example, in Re McLeod,2 a testator gave instructions and a draft will was prepared and sent electronically. The testator confirmed her approval of the will during the COVID- 19 lockdown period but the will was not signed. The Court validated the electronic document under s 14 because it was satisfied that the document expressed the deceased’s testamentary intentions. Similarly, in Re Scott,3 the Court validated an electronic version of a will that had been drafted while the deceased was still alive but which was not sent until two days after the deceased’s death. Again, the Court was satisfied that the draft will accurately reflected the deceased’s testamentary intentions.

[21]             In the present case, there was a significant time lapse between the giving of the instructions (23 March 2020), the forwarding of the draft to the deceased (22 April 2020) and the deceased’s death (3 July 2020). The deceased did not confirm that the document sent to her electronically on 22 April 2020 accurately recorded her testamentary intentions. The draft will may have encapsulated the deceased’s testamentary intentions as at 23 March 2020, but there is nothing to suggest that the draft continued to reflect her intentions. It is entirely possible that the deceased changed her mind about making a new will. She may have decided that she was content with her 2011 will. It is unlikely that she overlooked the need to sign the new will. There is no suggestion that the deceased lacked mental capacity; Ms Neru had expressly asked for confirmation that the draft will was correct, and pointed out to the deceased that the Public Trust would then finalise the document and forward it out to her for execution. The fact that the deceased did not respond to the Public Trust’s email of 22 April 2020 suggests that she did not want to proceed with the draft will. It certainly cannot be assumed that she wanted to do so. If the deceased had replied to the Public Trust and confirmed that the document accurately recorded her testamentary intentions or if there had been a much shorter time lapse between the

2      Re McLeod [2020] NZHC 1992.

3      Re Scott [2018] NZHC 3177.

giving of the instructions, the email enclosing the draft will and the deceased’s death, I may have been more inclined to validate the electronic draft under s 14. There was however no confirmation and there has been not inconsiderable delay. Moreover, the handwritten instructions taken by Ms Neru on 23 March 2020 have been destroyed. There is no way to check that the entries in the Public Trust’s will system, which find expression in the draft will, accurately record the instructions given to, and written down by, Ms Neru on 23 March 2020.

Result

[22]             For the reasons set out, I am not satisfied that the document prepared on 30 March 2020 and forwarded to the deceased on 22 April 2020 expresses the deceased’s testamentary intentions. Accordingly, the application is declined.

Wylie J