Browne v Public Trust

[2012] NZHC 1647

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2012-441-001 [2012] NZHC 1647

IN THE MATTER OF     the Estate of Patrick James Browne

BETWEEN  VERONICA BROWNE Plaintiff

ANDPUBLIC TRUST Defendant

Hearing:         On the papers

Counsel:         SWM Piggin for Plaintiff

H R Grayson for Brenda Hope
G M Cairns for Defendant

Judgment:      11 July 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 2pm on the 11th day of July 2012.

JUDGMENT OF MACKENZIE J

[1]      In this proceeding, the plaintiff, who is named as a beneficiary in a document signed by the deceased on 30 May 2010, seeks an order declaring that document valid as a codicil to the will of the deceased dated 11 February 2010.

[2]      The deceased made a will dated 11 February 2010 with the Public Trust.  The Public Trust was appointed executor and trustee.  There were gifts of money to seven named beneficiaries totalling $58,000, and a gift of the residuary estate to the deceased’s adult daughter, Brenda Hope.  On 30 May 2010, while the deceased was an in-patient at Hastings hospital, he signed a document which began:   “This is a

change to my will of Patrick James Browne dated 30.5.10”.   There are then four

BROWNE V PUBLIC TRUST HC NAP CIV-2012-441-001 [11 July 2012]

paragraphs which indicate a wish to give certain sums of money to a number of different beneficiaries.

[3]      Public Trust considered that the document dated 30 May 2010 gave rise to a number of issues and a potential conflict of interest for Public Trust.  Public Trust invited the plaintiff, as the beneficiary receiving the largest bequest under that document,  to  seek  independent  advice.     All  of  the  persons  affected  by  the dispositions in both documents have been contacted.  Counsel have filed a helpful joint explanatory memorandum explaining that background and setting out the terms of a compromise which had been reached between the plaintiff and the residuary beneficiaries under the 11 February 2010 will.   All parties affected have indicated their consent to the orders which are now sought.  These include orders declaring the document dated 30 May 2010 valid as a codicil to the will dated 11 February 2010; declaring that the legacies in that document be added to the legacies provided for in the will;   and an order that administration be granted to the Public Trust of both documents.

[4]      The written consent of all the other beneficiaries to the validation of the will, and the agreement now reached between the plaintiff and the residuary beneficiary, mean that an order can now be made by consent in terms of a consent memorandum dated 15 May 2012.   A copy of that consent memorandum, setting out the orders sought, is attached to this judgment.

[5]      In respect of paragraph 2, and paragraphs 4 to 7, of that memorandum, it is appropriate to make orders by consent.  So far as paragraph 1 is concerned, the Court must for itself be satisfied that the requirements of s 14 of the Wills Act 2007 are met.  I must consider that question, in the light of the evidence.  The consent of the parties does not obviate the need for that.

[6]      The first requirement of s 14(1) is that the document sought to be declared valid appears to be a will.  I consider that it is clear from the terms of the document dated 30 May 2010 that it is intended to constitute a testamentary disposition.  The way in which it has been prepared and the way in which it is has been signed and

witnessed,  indicate that  that  is  the intended  effect  of  the document.    That  first requirement is met.

[7]      The second requirement is that the will does not comply with s 11.   That section requires that a will be signed or acknowledged by the will-maker, in the presence of at least two witnesses who each sign the document in the will-maker’s presence.   The document dated 30 May 2010 is signed by the deceased, and it is witnessed by two witnesses.  Both of those witnesses have sworn affidavits setting out the circumstances.   That evidence indicates that all three persons, that is the deceased and the two witnesses were present when the document was signed.  From that evidence, it appears that the requirements of s 11 were in fact met.   On that basis, the document would be valid as a codicil to the will without an order under s 14.  However, to avoid any doubt on that issue, I go on to consider the application of s 14, as if the requirements of s 11 were not met.

[8]      The Court may make an order declaring the document valid if it is satisfied that the document expresses the deceased’s testamentary intentions.  I am satisfied that this document does represent the deceased’s testamentary intentions.   The evidence of the witnesses as to the circumstances in which the will was signed make it clear that the deceased did not have long to live.   As he was wheeled to the intensive care unit from the ward, he was sitting up in bed trying to write out his will and was adamant about getting it done.  A nurse offered to assist him.  She wrote the document out to the deceased’s instructions.  She wrote down what he dictated in his own words.  She read each paragraph as she wrote it to make sure it was what he meant.  That evidence satisfies me that the document does express his testamentary intentions.

[9]      In those circumstances, and in order to avoid any doubt as to whether the document is otherwise valid, I consider that it is appropriate to make an order in terms of paragraph 1 of the consent memorandum.

[10]     As to the order sought in paragraph 3 of the consent memorandum, probate is again a matter which would not ordinarily be the subject of a consent order.  Having regard to the evidence adduced, and to the order which I have just made in respect of

paragraph 1, I am satisfied that the evidence establishes that a grant of probate of the will and codicil is appropriate, in terms of paragraph 3 of the consent memorandum.

[11]     For these reasons, there will be orders in terms of paragraphs 1 to 7 of the consent memorandum annexed.  The orders in paragraphs 2 and 4 to 7 are consent orders.

“A D MacKenzie J”

Solicitors:         Robb & Brown, Auckland, for the Plaintiff

Gresson Grayson, Hastings, for Brenda Hope

Public Trust – Head Office, Wellington, for Defendant