Estate of Bricknell

[2021] NZHC 1463

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-485-603555

[2021] NZHC 1463

IN THE MATTER

of the Estate of NATALIE ANN BRICKNELL

BEVERLY McLEAN

Applicant

On the papers:
Counsel:	N du Toit for the Applicant
Judgment:	18 June 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 18 June 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Estate Bricknell [2021] NZHC 1463 [18 June 2021]

[1]                 Beverly McLean seeks on a without notice basis orders for review of a Registrar’s refusal to grant probate of a will. She also makes an informal application to correct a will under s 31 of the Wills Act 2007 (the Act).

Background

[2]                 Natalie Ann Bricknell died on 24 August 2020. She had lived in both New Zealand and South Africa and held assets in both countries.

[3]                 Ms Bricknell made a will in New Zealand on 20 January 2009 (the New Zealand will). Ms McLean, Ms Bricknell’s daughter, is the executor of the New Zealand will.1 Under the New Zealand will, her husband having predeceased her, the residue of  Ms  Bricknell’s  estate  is  shared  equally  between  Ms  McLean  and  Ms Bricknell’s grandson, Chad Bricknell, subject to his attaining 21 years of age. If Chad had died before he turned 21 then his share passed to his mother, Yvonne Bricknell. Chad is still alive.

[4]                 Ms Bricknell then made a will in South Africa on 19 October 2017 (the South African will). The executors under the South African will are Standard Trust Ltd or the Standard Bank of South Africa Ltd, whichever accepts first. The South African will states that it revokes all previous testamentary dispositions. Under it 50 per cent of the residue of Ms Bricknell’s estate goes to Ms McLean, 40 per cent to Chad Bricknell and 10 per cent to Yvonne Bricknell.

[5]                 On 27 November 2017, Ms Bricknell emailed her lawyer in New Zealand saying “(t)he will you hold only pertains to my New Zealand assets as I have a South African will which deals with my South African assets”.

[6]No other documents are relied upon.

[7]                 Following Ms Bricknell’s demise, Ms McLean made a without notice application to the Registrar of this Court on 10 March 2021 for probate of the New Zealand will of the deceased “that relates only to her estate situated in New Zealand”.

1      Ms Bricknell’s husband was the named executor of the New Zealand will. As he predeceased her, Ms McLean is the substituted executor of the will.

[8]                 On 29 March 2021 the Registrar advised the solicitors for Ms McLean that if evidence could be provided showing the later will (that is the South African will) is valid under South African law, probate in New Zealand can be granted in terms of that will under r 22 of the High Court Rules. The Registrar asked if the original South African will could be provided.

[9]                 That then resulted in a memorandum from Ms du Toit dated 7 April 2021 saying that the applicant is unsure whether either of the executors nominated in the South African will have accepted the appointment and that the applicant did not wish the New Zealand Court to consider the South African will in any respect other than to conclude that on a proper construction the revocation clause in the South African will did not relate to the New Zealand assets.

[10]              On 13 May 2021 the Registrar advised counsel that the South African will was not limited to property in South Africa and Ms Bricknell’s email of 27 November 2017 could not be treated as a revival under s 17 of the Wills Act 2007 of the earlier New Zealand will such that it would apply to property in New Zealand.

[11]              The Registrar said that the applicant could possibly make an application to this Court under ss 14 or 31 of the Act for an order that the earlier New Zealand will be given effect in relation to property of the deceased in New Zealand. For convenience I set out these sections:

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

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

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

…

31 Correction

(1)   This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—

(a)  contains a clerical error; or

(b)  does not give effect to the will-maker’s instructions.

(2)   The court may make an order correcting the will to carry out the will- maker’s intentions.

[12]              As noted above, the applicant has, since the Registrar’s advice of 13 May 2021, sought to review, or alternatively rely on s 31 of the Act.

Without notice application for review

[13]              On the application for review Ms McLean relies primarily on Re Lees,2 a decision of Heath J. There, the will-maker had made two wills, one in New Zealand and a later one in Thailand. The revocation clause in the Thai will stated (translated from Thai):

I hereby revoke all former wills and codicils made by me and declare this to be my last Will and Testament for my property in Thailand.

(Emphasis added.)

[14]              The Registrar refused probate. Heath J reviewed that decision and granted probate. Heath J found that the revocation clause revoked the earlier New Zealand will in part only and that the Thai will only dealt with the will-maker’s property in Thailand.3 He stated that wills must be given an interpretation that accords with the intention of the will-maker, whether by way of interpretation or with the assistance of extrinsic evidence.4 He referred to Douglas-Menzies v Umphelby and held that where testamentary dispositions are recorded in two or more documents, they may all be admitted to probate and it is the “aggregate or the net result that will constitute his (or her) will”.5

2      The Estate of Lees HC Auckland CIV-2010-404-3834, 26 July 2010.

3      At [13]-[14].

4      At [12] citing Guardian Trust and Executors Co of NZ v Darroch [1973] 2 NZLR 143 (SC) at 146-147.

5      At [11] citing Douglas-Menzies v Umphelby [1908] AC 224 (PC) at 233.

[15]              Ms du Toit, counsel for Ms McLean, submits that in this case the email is extrinsic evidence that the Court should use when interpreting the wills and assessing Ms Bricknell’s testamentary intention. She submits the Court should allow the review of the Registrar’s decision and find that the South African will only revokes the New Zealand will in respect of Ms Bricknell’s property in South Africa.

[16]Ms Bricknell’s South African will states:

I, Natalie Ann Bricknell… revoke all previous testamentary dispositions and declare the following to be my Last Will.

[17]              This can be clearly distinguished from Lees, where the deceased’s Thai will stated it was the “…last Will and Testament for my property in Thailand” (emphasis added). Ms Bricknell’s South African will contains no language to limit its application to solely her South African property. This is not a case like Lees of a revocation clause that revokes the earlier New Zealand will in part only. The email of 27 November 2017 cannot be called in aid in terms of construction of the South African will because the provision in the will is not ambiguous.

[18]              On its face the South African will revoked the New Zealand will in its entirety. The Registrar was correct to refuse to grant probate on the basis sought.

[19]              Although not advanced by Ms du Toit I considered whether the 27 November 2017 email might revive the New Zealand will under s 17 of the Act. To revive a will under s 17, the will-maker must make a codicil that makes clear his or her intention to revive part of a will and the codicil must comply with s 11 of the Act. Section 11 requires the will or codicil to be signed by the will-maker and by at least two witnesses. The email sent by Ms Bricknell does not meet these requirements. There may conceivably be scope for this Court to exercise its discretion and nevertheless declare it valid under s 14 of the Act. No application under s 14 has been made and so it not necessary for me to explore that possibility.

Informal application under s 31 of Wills Act

[20]              As an alternative to the application for review Ms McLean submits that an order can be made under s 31 of the Act to “correct” the South African will in order to

carry out what she says is Ms Bricknell’s intention. Ms du Toit submits that if the Court is satisfied that it was Ms Bricknell’s intention for the New Zealand will to continue to apply to her New Zealand assets, then it should “correct” the revocation clause in the South African will to exclude the New Zealand will in respect of her New Zealand estate.

[21]              No actual application has been filed. Any application of this nature would have to be made formally and on notice, with service on all interested parties including the executors of the South African will.

[22]              It would also be doubtful whether this Court would have jurisdiction to correct a will made in South Africa. At the least such an application would also require application to the High Court for probate in respect of the South African will, which application has not been made.

[23]              In this latter regard I note Ms du Toit submits that the applicant sought probate only of the New Zealand will because the nominated executors in the South African will are corporations and under s 48(1) of the Trustee Act 1956, corporations could not administer a deceased estate in New Zealand. However, the Trustee Act has been repealed and replaced with the Trusts Act 2019. There is no equivalent section in this Act prohibiting corporations from acting as administrator of a deceased’s estate. Therefore, probate could be granted in New Zealand in terms of the South African will, but that would require application by the executors of that will. Whether Ms du Toit has instructions from those parties is another matter.

Hinton J