Estate of Butler

[2013] NZHC 1554

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-001652 [2013] NZHC 1554

IN THE ESTATE OF         MARGARET (PEGGY) BUTLER

Hearing:	24 June 2013
Appearances:	S G Moore
Judgment:	25 June 2013

JUDGMENT OF KEANE

This judgment was delivered by  on 25 June 2013 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Haigh Lyon, Auckland

ESTATE OF BUTLER [2013] NZHC 1554 [25 June 2013]

[1]      On 14 April 2012 Margaret Butler, aged 91, died at a rest home, Mercy Parklands, Ellerslie, Auckland, leaving her estate to be administered according to a will dated 23 October 2004, subject to a codicil dated 1 December 2006.

[2]      One of Ms Butler’s executors and trustees, Thelma Hopkins, applies for an order declaring valid as a further codicil a letter she wrote and Ms Butler signed, dated  25 August  2011,  to  David  Snedden,  Ms  Butler’s  solicitor  and  her  other executor and trustee, varying some specific bequests, adding others, and making Mrs Hopkins her sole residuary beneficiary.

[3]      The existing and proposed beneficiaries affected have been given notice by letter of the application and served with it and the supporting affidavits. None has taken any step.

Power to declare codicil valid

[4]      Under s 14 of the Wills Act 2007, I have the power to declare the letter to be a valid codicil, if it appears to have testamentary effect and even though it does not comply with the formal requirements for a valid codicil, as long as Mrs Hopkins as applicant is able to establish to the civil standard that it has the necessary validity.1

[5]      Two principles govern the procedure to apply;2  and the first is that all those potentially affected must be given notice and be heard if they wish to be and as to that there can be no issue. All affected have been advised by letter of this application and have been served with the papers. None has taken any step or appeared on this, the first notified call of the application.

[6]      The other principle is that the application is to be resolved by a process consistent with the remedial nature of the s 14 power. Applications are to be resolved promptly, without undue formality, inexpensively and efficiently; and, in the absence of any challenge, this application is able to be resolved immediately on the papers as

they are.

1      In Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009 at [11].

2 At [4].

Testamentary effect

[7]      The letter, dated 25 August 2011, subject only to whether it is valid, has definite testamentary effect. It modifies some of the 21 specific bequests Ms Butler made in her will, dated 23 October 2004, and refined in her 1 December 2006 codicil, to charities, religious orders, friends, and to the two Hopkins children. It varies more radically in her residuary requests.

[8]      Under the will and existing codicil Ms Butler’s residuary estate is divided into four. The education fund of the Franciscan Order is entitled to one share, the St Josephs Mercy Hospice to a second, the Salvation Army to a third, and the fourth is to go to Mrs Hopkins and her children equally. Under the letter she is to receive the entire residuary estate and the other present residuary beneficiaries are to receive instead specific bequests.

Conclusions

[9]      I am satisfied, first, that the circumstances in which the letter was written are consistent with its validity as a codicil. Mrs Hopkins prepared the letter on 25 August on Waiheke Island, where Ms Butler was then living in the Seaside Sanctuary rest home, after Mr Snedden could not hear Ms Butler’s instructions over the phone and asked Mrs Hopkins to assist. There is no issue that Ms Butler signed the letter.

[10]     Secondly, I am satisfied, Ms Butler did not formalise the letter in a further codicil only because Mr Snedden was not able to attend on her before she died. Soon after the letter she moved to the Ellerslie rest home and Mr Snedden received, but proved unable to respond immediately to two emails from Mrs Hopkins. One, dated

28  September,  asked  him  to  confirm  he  had  ‘received  the  codicil  ...  made last month’. The other, dated 4 October, asked him to visit Ms Butler the next day so that she could execute a codicil when she had friends visiting.

[11]     Thirdly, I am satisfied that Ms Butler had the capacity to, and did wish to, benefit  Mrs  Hopkins  to  the extent  she did. The trust  Ms  Butler placed  in  Mrs Hopkins is evident not just in the fact that she made her an executor and trustee. On

29 October 1996 she also gave her an enduring power of attorney. There is evidence

from Mrs Butler’s friends as to how important Mrs Hopkins was to her. Ms Butler’s general practitioner, who had known her for some 30 years, says that in August 2011 she was definitely of sound mind. Also he recalls that around October 2010 she spoke very fondly of Mrs Hopkins and said she wanted to leave most of her possessions to her.

[12]     Mr  Snedden,  Mrs  Hopkins’ co-executor  and  co-trustee  and  Ms  Butler’s solicitor since 1981, also confirms that the proposals in the letter are characteristic of Ms Butler’s practice over those years. He too is aware of how central Mrs Hopkins and her family had become to Ms Butler over her final years. In that sense he too supports Mrs Hopkins’ application.

[13]     There will, therefore, be the order applied for declaring to be valid the letter

dated 25 August 2011 as a second codicil to Ms Butler’s will.

P.J. Keane J