Public Trust v Lourie

[2020] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000540

[2020] NZHC 1691

UNDER

Part 5 and Part 7 of the High Court Rules 2016

BETWEEN

PUBLIC TRUST as executor of the Estate of ELIZABETH CELIA PURVES

Plaintiff

AND

JOHN LOURIE

First Defendant

GERALDINE TYLER-SMITH
Second Defendant

ALEXANDRA STROTH

Third Defendant

MICHAEL SPRINGER
Fourth Defendant

SALVATION ARMY
Fifth Defendant

HEATHER GROUDEN
Sixth Defendant

WICKHAM PACK

Seventh Defendant

CATRIONA GOWER
Eighth Defendant

MAURICE WHITE NATIVE FOREST TRUST

Ninth Defendant

PILLARS INCORPORATED (KA POU WHAKAHOU)

Tenth Defendant

PUBLIC TRUST v LOURIE [2020] NZHC 1691 [14 July 2020]

ASSOCIATED NEW ZEALAND MYALGIC ENCEPHALOPATHY SOCIETY INCORPORATED

Eleventh Defendant

AMNESTY INTERNATIONAL NEW ZEALAND

Twelfth Defendant

On the Papers

Counsel:

G Traves and A Finnie for the Plaintiff J H Stevens for the Fifth Defendant

T J Hutchison for the Eleventh Defendant M M Bell for the Estate of Kenneth Fea

Judgment:

14 July 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 14 July 2020 at 4.00 pm

pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:

Public Trust, Christchurch Bell Gully, Wellington

Van Aart Sycamore Lawyers, Dunedin Corcoran French, Christchurch

Introduction

[1]                Public Trust applies for a grant of probate in solemn form of the last will of Elizabeth Celia Purves (the deceased) who died on 16 February 2018.1 The will for which probate is sought was executed on 17 November 2014 (the will).

[2]                In late January 2018 the deceased gave instructions to Public Trust for the drafting of a new will (the draft will) which involved significant changes from the will.

[3]                The draft will was sent to the deceased for her consideration and she requested some amendments to it. These amendments were made, and the amended draft will was sent to the deceased by email on 5 February 2018.

[4]                The draft will was never signed by the deceased, and she died following the apparent intentional ingestion of medication. Her death is a matter subject to a future coronial finding.

Background

The will

[5]                On being notified of the deceased’s death, Public Trust made extensive enquiries and established that the will is the last known executed will of the deceased. The will provides that her property situated at Little River, together with the usual fixtures and chattels, be gifted free of any encumbrance to Kenneth Hugh Fea.

[6]                Mr Fea and the deceased entered into a relationship in or around 1994. This relationship continued up until the deceased’s death, notwithstanding that Mr Fea suffered from dementia in the last years of his life and was put into care in late 2015. The deceased and Mr Fea lived together between 1994 and 2015 except for periods of time when the deceased travelled overseas, although they would also travel overseas together from time to time. Mr Fea died on 21 March 2019.

1      High Court Rules 2016, r 27.6.

[7]                In addition to the bequest to Mr Fea, the will also made bequests to a miscellany of the deceased’s friends and favourite charities.

The draft will

[8]                In late January 2018 the deceased gave instructions to Public Trust for the drafting of a new will. At the time she provided the instructions in respect of her draft will, Public Trust were unaware of the fact that the deceased had been suffering from mental health issues and was possibly suffering from dementia. Significantly, the instructions for the draft will did not contain any bequest to Mr Fea.

[9]                Public Trust prepared the draft will and sent it to the deceased for review. The deceased requested some subsequent amendments be made to the draft will. They were made, and the amended draft will was returned to her.

[10]            It is unclear whether the deceased saw the final amendments or not. There is some evidence she may have attempted to have the will witnessed but this evidence is inconclusive.

Declaration as to validity of the draft will, or probate in solemn form of the will?

[11]            Due to the very close proximity between Public Trust receiving the deceased’s instructions to prepare the draft will and her death of apparent suicide, Public Trust considered whether to apply under the Wills Act 2007 for an order declaring the draft will to be a valid will, or to apply for a grant of probate in solemn form of the will.

[12]            Public Trust liaised with all beneficiaries under the will and all proposed beneficiaries under the draft will. It became apparent immediately that whichever route Public Trust elected, there would be a potential dispute. They chose to obtain evidence as to the deceased’s testamentary capacity before deciding which course to pursue.

[13]            Public Trust obtained the deceased’s medical records from the deceased’s general practitioner and from the Canterbury District Health Board. The evidence clearly illustrated a significant mental health history in the months leading up to the

deceased’s death. The records also contained concerns that the deceased may have been suffering from a level of dementia prior to her death. There was thus a tenable issue arising, concerning the deceased’s testamentary capacity at the time she gave Public Trust instructions in respect of the draft will. They decided to seek probate in solemn form of the will, and not to pursue a declaration that the draft will was valid.

[14] All those served with these proceedings were provided with the medical records referred to in [13]. Upon receiving service of the proceedings and the related disclosure of the medical records, most have taken no steps to oppose the probate in solemn form of the will. No party asserts that a declaration should be made declaring the draft will to be valid. There must be an acceptance by all those involved that there would be insuperable difficulties on the evidence in establishing that the deceased was definitively and unequivocally of sound mind, memory and understanding to the requisite standard at the time she provided Public Trust with instructions in respect of the draft will.

[15]            The application for probate in solemn form is not now formally opposed. However, the Court must satisfy itself that the requisite onus of proof on Public Trust has been met and that the application for probate in solemn form of the will ought to be granted.

Analysis

[16]            The burden of proof in these proceedings falls on Public Trust, and the standard of proof is on the balance of probabilities.2

[17]No caveats have been lodged against the will.

[18]            Evidence of the death of the deceased is provided by way of a copy of her death certificate issued on 7 March 2018. This is sufficient evidence of her death for the purposes of r 27.12(1) of the High Court Rules.

2      Re Burke [1991] 2 NZLR 312.

[19]            There are no defences filed to the grant of probate in solemn form. There is no challenge or concern expressed in respect of the deceased’s testamentary capacity to execute the will. Nor are there any challenges to its validity. There is no evidence that the deceased was subject to any undue influence at the time the will was drafted and executed. Finally, I note that the will’s provisions were more in line with the deceased’s legal obligations to Mr Fea  in  respect  of  the  operation  of  the  Property (Relationships) Act 1976.

Result

[20]I make the following orders:

(a)The   last   will   of    Elizabeth    Celia    Purves,    deceased    dated 17 November 2014 is proved in solemn form to be the last will of Elizabeth Celia Purves.

(b)Probate of the last will  of  Elizabeth  Celia  Purves  to  issue  to Public Trust.

(c)The reasonable legal costs of Public Trust are to be met from the estate of Elizabeth Celia Purves.

Doogue J