Estate of Aitken

[2021] NZHC 3134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1540

[2021] NZHC 3134

IN THE MATTER OF	the Wills Act 2007
AND
IN THE MATTER OF	the Estate of IVAN NEIL AITKEN, late of Mount Maunganui, Retired, Deceased
AND
IN THE MATTER OF	an application by PUBLIC TRUST for an order that an invalid Will be validated under the Wills Act 2007

Hearing:	On the papers
Counsel:	K T Reuben and A R Gilchrist for Applicant
Judgment:	19 November 2021

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 19 November 2021 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Counsel:            A R Gilchrist, Auckland

Copy for:           Public Trust, Auckland

Re PUBLIC TRUST [2021] NZHC 3134 [19 November 2021]

[1]                 This is an application by the Public Trust for an order declaring a document valid as a will (“draft will”). The application is made pursuant to s 14(2) Wills Act 2007 (“Act”) and is unopposed.

Background

[2]                   The circumstances in which the draft will was prepared are set out in an affidavit of 27 July 2021, sworn by Ms Nichole Gough, an officer of the Public Trust, and are as follows.

[3]                 The deceased, Mr Ivan Aitken, made a will in October 2019 appointing the Public Trust as executor and trustee (“2019 will”).

[4]                 On 25 November 2020, Mr Aitken handwrote a list of changes he wished to make to the 2019 will.

[5]                 On 2 March 2021, Mr Aitken’s  daughter,  Ms  Trudy  Aitken,  telephoned Ms Gough to ask if Mr Aitken’s handwritten note had any legal effect on the 2019 will. Ms Gough advised that it did not.

[6]                 Later that day, Ms Aitken delivered the note to Ms Gough. Ms Gough spoke to Mr Aitken by telephone and confirmed his instructions.

[7]                 On 3 March 2021, Ms Gough telephoned Mr Aitken again to clarify details such as a beneficiary’s middle name and address. Ms Gough handwrote these details on Mr Aitken’s note. During this telephone call, Mr Aitken explained to Ms Gough that he wished to increase the specific bequests or legacies in his will because he knew he would not now require that money for his retirement.

[8]The Public Trust prepared the draft will reflecting Mr Aitken’s instructions.

[9]                 On 4 March 2021, Ms Gough arranged with Ms Aitken that she and a colleague would visit Mr Aitken with the draft will on Friday, 5 March 2021 and, if it was in order, have it executed.

[10]             On 5 March 2021, Mr Aitken had a consultation with Dr James Peckett, a general practitioner, who confirmed that Mr Aitken had testamentary capacity. However, due to a tsunami warning the Public Trust cancelled all appointments in, amongst other places, Mount Maunganui, where Mr Aitken lived.

[11]             The appointment was rearranged for Monday, 8 March 2021. However, when Ms Gough and her colleague, Ms Karen Sunnex, attended at Mr Aitken’s address he was too unwell to see visitors. Thus Ms Gough did not see Mr Aitken and nor did he execute the draft will. Mr Aitken died that afternoon.

[12]Accordingly, the 2019 will stands unless the order sought is made.1

Beneficiaries

[13]             The beneficiaries of the 2019 will were Mr Aitkin’s children (being his three daughters), grandchildren, and great-grandchildren. Each great-grandchild was to receive $5,000; each grandchild $10,000; and each daughter was to receive an equal one-third share in the residue of the estate.

[14]             Mr Aitken’s estate comprises $160,000 cash, a vehicle understood to be worth approximately $20,000, and a property in Mount Maunganui valued at approximately

$1.5 million.

[15]             Under the draft will, the bequest to each grandchild is increased to $20,000; that to each great-grandchild is increased to $10,000; and two new beneficiaries are added. These are Ms Margaret Thomson, Mr Aitken’s partner, who is to receive any motor vehicle Mr Aitken owned at the date of death. The other is Mr Geoffrey Gibson, Mr Aitken’s son-in-law, who is to receive $10,000.

Service

[16]             On 29 July 2021, Powell J made directions for service, which have been complied with.

1      Wills Act 2007, s 11(2).

Opposition

[17]             On 2 July 2021, Mr Vodanovich, solicitor for Ms Lesley Mazoue, advised her opposition to the application. Ms Mazoue is one of Mr Aitken’s daughters. Her concern was that there may have been undue influence, noting that Mr Aitken’s and another  person’s  (Ms  Gough’s  as  it  turns  out)  handwriting  was  on  the  note. Ms Mazoue also expressed concern the draft will had been prepared some time after the note was written.

[18]             On 24 August 2021, Ms Andrews, counsel for Ms Mazoue, filed a memorandum raising an issue as to whether Mr Aitken had testamentary capacity at the relevant time, and requesting various orders, including that the Public Trust be appointed temporary administrator of the estate. Fitzgerald J made the orders sought on 26 August 2021.2

[19]             Ms Mazoue has now withdrawn her opposition, and there is no other opposition to the application.

Law

[20]Section 14 of the Act provides:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3)The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

2      Re Aitken HC Auckland CIV-2021-404-1540, 26 August 2021.

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

[21]             To satisfy the requirements of s 14(2), the Court must be satisfied the document expresses the testator’s final testamentary intentions.3

Discussion

[22]             The draft will proposed to be validated meets the requirements of s 14(1) of the Act.

[23]             I am also satisfied that the draft will meets the requirements of s 14(2), in the sense that I am satisfied it represents Mr Aitken’s final testamentary intentions. He confirmed with Ms Gough twice that this was the case, and arranged to execute the draft will. But for the tsunami, and his rapid decline, I am satisfied Mr Aitken would have executed the will.

[24]             I therefore make an order declaring valid the document annexed marked “D” to the affidavit of Nichole Maree Gough sworn 27 July 2021 pursuant to s 14 Wills Act 2007.

Peters J

3      White v White [2014] NZHC 865 at [7]; and Gladwin v Public Trust [2011] 3 NZLR 566 (HC) at [28].