Estate of Bruss
[2021] NZHC 191
•17 February 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2020-412-88
[2021] NZHC 191
UNDER of s 14 Wills Act 2007 IN THE MATTER
of an application for an order that a document be declared the valid will of MARGARET PATRICIA BRUSS
IVAN JOHN COCKROFT
Applicant
Appearances: M J Foley for Applicant
L Paul for the Order of St John South Island Region Trust Board
Judgment:
17 February 2021
(Determined on the papers)
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 17 February 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Re Estate BRUSS [2021] NZHC 191 [17 February 2021]
Introduction
[1] The applicant, Ivan Cockroft, seeks an order pursuant to s 14 Wills Act 2007 that a document be declared a valid will of the deceased, Margaret Patricia Bruss, who died at Dunedin on 13 July 2019.
[2]This application is made by way of an originating application on notice.
[3] Directions as to service were sought and obtained and all persons entitled to be served have been served.
Background
[4] Evidence as to background has been provided in a detailed affidavit of Mr Cockroft.
[5] Ms Bruss had a will dated 5 March 2001 (the 2001 will). This will could be granted probate if the testamentary document is not validated.
[6] Mr Cockroft was the solicitor for Ms Bruss from 2013 until her death in 2019. On 11 March 2018 Ms Bruss emailed Mr Cockroft intending to have a new will prepared. In her email she explained that she was about to go to Australia on holiday. She recorded that even if Mr Cockroft did not have the new will ready straight away:
“you’ll have some info if anything happens to me within the next few weeks. Just making sure I’m all prepared for that inevitable event that none of us can avoid or control.”
Two days later Mr Cockroft received a letter from Ms Bruss enclosing typed notes entitled “Information For New Will – Margaret Bruss 11 March 2018” (the Notes). The Notes listed detailed bequests, legacies and gifts. Notably, however, the Notes did not deal with the residue of her estate. Ms Bruss explained in the Notes: “That doesn’t cover all the money yet, John”.
[7] Mr Cockroft prepared a draft will (with gaps) based on the Notes, and arranged to meet Ms Bruss on 7 May 2018.
The residue discussions
[8] Ms Bruss and Mr Cockroft met on 7 May 2018 and discussed changes to the draft document. Ms Bruss had still not decided what to do with her residue. She explained to Mr Cockroft that she had (in the bequests, legacies and gifts,) covered everyone she wanted to leave things to and had largely dealt with her cash assets to provide the bequests, legacies and gifts. Mr Cockroft suggested, in that case, that Ms Bruss double amounts given to individuals and leave the residue to St John (one of her identified charities). Mr Cockroft made such changes as they discussed that day, had them typed up and sent the document back to Ms Bruss. In the provision for the residue (cl 6), space for a named beneficiary or beneficiaries was left blank. In a covering email, Mr Cockroft recorded the discussion with Ms Bruss about the residue.
[9] On 25 May 2018, Ms Bruss emailed Mr Cockroft, stating she had come home from hospital the previous day and would be back to him for some alterations to her will in due course. Mr Cockroft understood her to be referring to the residue clause, that being the outstanding matter.
[10] Ms Bruss died on 13 July 2019. A printed version of this document was found at her house after her death. Ms Bruss had signed it on each page and initialled the residue clause. This is the testamentary document that the applicant seeks have validated (the document). In the first clause, Ms Bruss revokes all former wills.
Discussions as to nieces and nephews
[11] Mr Cockroft in his affidavit has properly and fairly referred to discussions which he had with Ms Bruss in relation to her nieces and nephews.
[12] Ms Bruss had one brother and one sister (respectively parents of the “Thompson" family and the “Hikaka” family). The Thompson nieces and nephews (in all, six) were close to Ms Bruss and had regular contact with her. Ms Bruss did not have a close relationship with the (three) nieces of the Hikaka family. Mr Cockroft did not understand there to be any greater “falling out” between Ms Bruss and the Hikaka family than the fact that Ms Bruss had had nothing to do with them for several years.
[13] In the Notes Ms Bruss proposed to provide monetary gifts only to her “six” nieces and nephews, being an apparent reference to the Thompson nieces and nephews. In the Notes she provided for a gift of items of jewellery to two of the three Hikaka nieces.
[14]In her Notes, Ms Bruss recorded the following:
NB nothing else to my sisters’ family in return for their neglect of me since 1991.
Law
[15] This Court has power to declare a document a valid will, pursuant to s 14 of the Wills Act. That section states:
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.
[16] Here, the requirements of s 14(1) are met. The document appears to be a will, it came into existence in New Zealand and it does not comply with section 11.
[17]Section 11 of the Wills Act provides:
11 Requirements for validity of wills
(1)A will must be in writing.
(2)A will must be signed and witnessed as described in subsections (3) and (4).
(3)The will-maker must—
(a)sign the document; or
(b)direct another person to sign the document on his or her behalf in his or her presence.
(4)At least 2 witnesses must—
(a)be together in the will-maker’s presence when the will- maker—
(i)complies with subsection (3); or
(ii)acknowledges that—
(A)he or she signed the document earlier and that the signature on the document is his or her own; or
(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)each sign the document in the will-maker’s presence.
(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:
(a)that he or she was present with the other witnesses when the will-maker—
(i)signed the document; or
(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)that he or she signed the document in the will-maker’s presence.
(6)No particular form of words is required for the purposes of subsection (5).
[18] The issues with the (signed) document are that it was not witnessed or dated. Section 11 was therefore not complied with.
Analysis
Incomplete residue clause
[19] An issue is that the document was incomplete and subject to further adjustment.
[20] The document does not allocate the residue of Ms Bruss’s estate. If it is validated the residue will be distributed according to the rules of intestacy.1 On an intestacy, Ms Bruss’s nieces and nephews (in both the Thompson and Hikaka families) will inherit.
Case law
[21] In considering the document I have taken into account the judgments of this Court in the following cases:
(a)White v White:2 the deceased handed her solicitor a marked-up copy of her previous will with the changes she wanted to make. She and the solicitor discussed the proposed changes. It was agreed that the solicitor would draft a new will, and the deceased would provide her with further information for that purpose. The draft will was sent to the deceased and she indicated she wanted to make further changes. A s 14 validation was sought but not granted. MacKenzie J was satisfied that the draft will did not represent the deceased’s testamentary intention.
(b)Naidu v Agnew:3 the deceased submitted signed instructions to solicitors for the preparation of a new will. It was assumed that she
1 Administration Act 1969, ss 77–78.
2 White v White [2014] NZHC 865.
3 Nadidu v Agnew [2012] NZHC 2134.
expected the document to be refined and confirmed following discussion with her solicitors. There were also questions surrounding whether the deceased had testamentary capacity at the time the document was prepared.
(c)Public Trust v Capper:4 a draft will was prepared by the Public Trust. The draft was never signed, and the deceased indicated they had not worked out how to achieve their desired outcome with all aspects of the will. However, an email from the deceased indicated that they thought, or knew in MacKenzie J’s words, that the unsigned draft would be operative.
[22] Both White v White and Naidu v Agnew can be distinguished. In White v White the draft will was not signed. The evidence suggested the deceased had not finally determined the amounts of the legacies.5 Here, the document was signed, the distribution of legacies is thorough, and there is the statement from Ms Bruss that she expected the notes would provide “some info if anything happens”. In Naidu v Agnew, the process of making a will had barely begun and there were questions of testamentary capacity.6 Here, Ms Bruss clearly had testamentary capacity and had given substantial thought to the document. As in Public Trust v Capper there is evidence that Ms Bruss thought or wished her notes and the document to be operative.7
Further discussion
[23] I do not overlook the strength of Ms Bruss’s comment as to “nothing else going to the Hikaka family”. However, that comment appears at the conclusion of the listing of specific gifts for beneficiaries. In the Notes, Ms Bruss expressly acknowledged to Mr Cockroft the fact that she was yet to deal with the residue. She subsequently made the decision to sign the document without any allocation of the residue. The evidence establishes that when she did so, it was in light of her assessment that her specific
4 Public Trust v Capper [2012] NZHC 2864.
5 White v White, above n 2, at [7].
6 Naidu v Agnew, above n 3, at [5].
7 Public Trust v Capper, above n 4.
bequests had already accounted for the greatest part of her estate. She wanted a new will to be in place in case anything happened.
[24] I find in these circumstances that the will represented Ms Bruss’s testamentary intentions, in particular in relation to the revocation of earlier wills and in the creation of specific legacies, bequests and gifts. To the extent that a residue remained and has to be dealt with under the laws of intestacy, that is precisely what the relevant provisions of the Administration Act exist to cover.
Orders
[25]I order:
(a)the document stated to be the last will and testament of Margaret Patricia Bruss, dated “2018”, and signed by her (without witnesses) on all three pages is declared to express her testamentary intentions; and
(b)the resulting intestacy in relation to the residue of Ms Bruss’s estate is to be dealt with in accordance with the provisions of the Administration Act 1969.
Osborne J
Solicitors:
Scholefield Law, Solicitors, Invercargill Diana Shirtcliff, Christchurch
Counsel:
Lana Paul, Christchurch
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