Estate of Barrow

[2023] NZHC 1146

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000196

[2023] NZHC 1146

IN THE MATTER

of the estate of the late MARGARET NOLA BARROW

UNDER

Section 32 of the Wills Act 2007

BETWEEN

PAUL MICHAEL SUMMERS and GEOFFREY COPELAND BAKER as

trustees of the estate of the late MARGARET NOLA BARROW

Applicants

Hearing:	On the papers
Counsel:	K H Lawrence for Applicants
Judgment:	12 May 2023

JUDGMENT OF RADICH J

[1]                Margaret Nola Barrow (the deceased) died on 6 August 2017. Probate of her 25 July 2021 will was granted on 27 November 2017 (the will).

[2]                The will left the income from the deceased’s residuary estate to her brother and the remainder was left to eight charities in equal shares. The deceased’s brother has now died and the residuary estate is held on trust for the eight named charities. The applicants, who are now the trustees of the estate, bring this proceeding under s 32 of the Wills Act 2007 (the Act) because of an ambiguity or uncertainty in relation to the way in which one of the eight charities named to benefit from the residuary estate is named in the will.

RE ESTATE OF MARGARET NOLA BARROW [2023] NZHC 1146 [12 May 2023]

[3]                Clause 4(b)(iv) of the will names one of the charities as “the Medical Research Council of New Zealand”. The Medical Research Council of New Zealand (MRC) existed until 1990. Under the Health Research Council Act 1990, it was dissolved and a new Crown entity, Health Research Council of New Zealand (HRC) was created in its place.

[4]                The applicants’ originating application seeks an order that cl 4(b)(iv) of the will be interpreted as reading “the Health Research Council of New Zealand” (originating application). In the alternative, an order is sought that the applicants proceed to prepare a scheme under Part 3 of the Charitable Trusts Act to give effect to the deceased’s charitable intention and direct, through that scheme, the funds be paid to HRC.

[5]                In a separate interlocutory application without notice, directions are sought which would grant leave for the application to be brought by originating application, for the application to be conducted through the Wellington Registry and for service of the application to be dispensed with (the interlocutory application).

Interlocutory application for directions

Originating application procedure

[6]                Under r 19.5 the Court may, in the interests of justice, permit any proceeding not mentioned in rr 19.2 to 19.4 (which is the case here) to be commenced by originating application. Curiously, r 19.2 identifies, specifically, applications under ss 14 or 31 of the Wills Act as proceedings that may be made by originating application but not proceedings under s 32. Section 14 of the Wills Act enables the Court to declare a document to be a valid will and s 31 enables the Court to make a correction to a will if satisfied that it does not carry out the will-maker’s intentions. Section 32

– which is relied upon here for the substantive orders sought – is, in broad terms, of a similar nature. It enables the Court to interpret words in a will that would, without adjustment, make the will or part of the will meaningless, ambiguous or uncertain.

[7]                The originating application procedure in Part 19 of the Rules is generally used for cases where it is not necessary to have full pleadings and interlocutory steps for

the proper determination of the issues.1 As counsel for the applicant has pointed out in the memorandum in support of the interlocutory application, leave to use the originating application procedure was granted in  Re Kamo for an application under  s 32 of the Act.2

[8]                I am satisfied that in this case the originating application procedure is appropriate. As I come on to mention below, the only party who would be adversely affected by the proceeding has indicated that it consents to the application. This is an appropriate case in which to grant leave to secure the just, speedy and inexpensive determination of the proceeding. Leave is granted accordingly.

Wellington registry

[9]                Because there is no defendant in the proceeding and because the Wellington Registry is the most convenient registry for the applicant, I direct under r 5.1(5) that the application be conducted through the Wellington Registry.

Service

[10]            Directions are sought under r 7.46 that service of the application be dispensed with. I accept that this is a case where the interests of justice are such that the application may be determined without the need for it to be served on any other party because the only party who might be affected by the making of the order is aware of the application and has consented to it.3 As the comprehensive evidence for the applicants demonstrate:

(a)The deceased’s will left the income from her residuary estate to her brother and the remainder to the eight charities in equal shares. The deceased’s brother has now died and so the residuary estate is held on trust for the charities.

(b)All but one of the charities named in the will have now been paid. Only the MRC payment remains. If, because the organisation by that name no longer exists, there would be a partial intestacy and the beneficiary

1      Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].

2      Re Kamo [2020] NZHC 474.

3      Re Ward [2020] NZHC 2616.

would be the deceased brother’s estate.4 The residuary beneficiary of the deceased brother’s estate was the Fielding and District Art Society Incorporated.

(c)The Fielding and District Art Society recorded, in a letter to the solicitors for the applicants that, following a meeting of the society in March 2023, it was agreed to consent to the application to interpret the reference in the deceased’s will to the MRC as being a reference to the HRC. It has said that it understands that this would mean that it will not have an opportunity to participate in this proceeding. It records a motion that was passed by the society to that effect.

[11]            I accept that in these circumstances it is appropriate for an order to be made under r 7.46 that the application may properly be dealt with without notice. I make that order accordingly.

Substantive application

[12]Section 32 of the Act is in the following terms:

32       External evidence

(1)This section applies when words used in a will make the will, or part of it,—

(a)meaningless; or

(b)ambiguous on its face; or.

(c)uncertain on its face; or

(d)ambiguous in the light of the surrounding circumstances; or

(e)uncertain in the light of the surrounding circumstances.

(2)The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain.

(3)External evidence includes evidence of the will-maker’s testamentary intentions.

(4)The court may not use the will-maker’s testamentary intentions as surrounding circumstances under subsection (1)(d) or (e).

4      The deceased was not married or partnered and had no children or living parents at the time of her death. Her brother was her closest relative to survive her.

[13]            As Gendall J explained in Haldane v Haldane, by reference to parliamentary debates on the introduction of ss 31 and 32 of the Act, the provisions mitigate the risk of a will-maker’s wishes being undermined by a poorly drafted or executed will. They allow better effect to be given to will-makers’ intentions.5

[14]            Where a will described something erroneously, such as to render it meaningless or uncertain, yet the will-maker’s testamentary intentions are clear from external material, the Court can, and should, assist through s 32.6

[15]            The MRC existed until 1990 when, pursuant to the Health Research Council Act 1990, it was dissolved and the HRC – a Crown entity and a registered charitable organisation – was established in its place. The assets and liabilities of the MRC became the assets and liabilities of the HRC.7

[16]            As the executor of the estate, Geoffrey Baker, has said in his affidavit, in the year 2000, when the will was prepared, there was to the best of his knowledge no online register of charitable trusts. Because there is no evidence of the deceased’s instructions to her solicitor in 2000 and no evidence of any prior connection between the deceased and the MRC8 the deceased’s intentions can only be ascertained from the provisions of her will. Clearly, she intended the residue of her estate to be divided entirely to a number of charitable organisations, all of which are concerned in some way with the provision of health-related services to the community.

[17]            It is clear enough that the deceased wanted an organisation that undertakes the type of work that was done by the MRC to benefit from her will, but neither she nor her solicitors at the time had identified the fact that the MRC had been succeeded by the HRC.

[18]            I am satisfied in these circumstances that the requirements of s 32 of the Act are satisfied and that the deceased’s intention should be given effect to with reference

5      Haldane v Haldane [2015] NZHC 352 at [20].

6      Wilson v Davidson [2017] NZCA 468.

7      Health Research Council Act 1990, preamble, ss 5 and 44–46.

8      The applicant has provided affidavit evidence from the Chief Financial Officer of HRC and from a registered legal executive of the firm who were the solicitors for the deceased to those effects.

to the available evidence as has been discussed. Accordingly, I am prepared to order that the words “the Medical Research Council of New Zealand” in clause 4(b)(iv) of the deceased’s will are to be interpreted as reading “the Health Research Council of New Zealand”.

[19]            The originating application and the memorandum of counsel in support suggest another option, in the event that the Court was not prepared to make an order under  s 32. The option would have involved the Court directing and approving a scheme under Part 3 of the Charitable Trusts Act 1957. I can see the way in which a scheme under Part 3 could appropriately be used in these circumstances. However, given my conclusion in [18] above, I do not go on to consider the option further.

Orders

[20]For the reasons given, I make the following orders:

(a)Leave is granted to commence this proceeding by originating application.

(b)The application is to be conducted through the Wellington Registry.

(c)Service of the application is dispensed with.

(d)Clause 4(b)(iv) of the will of the late Margaret Nola Barrow is to be interpreted as reading “the Health Research Council of New Zealand”

(e)The costs of this application are to be paid from the deceased’s estate on a solicitor-client basis.

Radich J

Solicitors:

Greg Kelly Law, Wellington for Applicants