Estate of Campbell

[2023] NZHC 455

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-0018

[2023] NZHC 455

IN THE ESTATE

of HELEN GLADYS CAMPBELL, of

Tauranga, Retired (deceased)

Hearing:	On the papers
Counsel:	D M Netherclift for the applicant
Date of judgment:	9 March 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 9 March 2023 at 3.45pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Public Trust, Wellington

RE ESTATE OF HELEN GLADYS CAMPBELL [2023] NZHC 455 [9 March 2023]

[1]                 Public Trust seeks my declaration, under s 14 of the Wills Act 2007, a document it has prepared is Helen Gladys Campbell’s valid will.

Background

[2]                 Ms Campbell died on 6 January 2023. Prior to her death, as intellectually disabled, she lived in a supported living facility in the Bay of Plenty’s Tauranga.

[3]                 Ms Campbell’s only surviving family is her cousin, Graham John Palmer (and, derivatively, his wife and their two children), who live in the United Kingdom. The Palmers maintained diligent and regular contact with Ms Campbell over many years, including travelling to New Zealand to see her, much to Ms Campbell’s enjoyment.

[4]                 After Ms Campbell came into an inheritance in 2017, under the Protection of Personal and Property Rights Act 1988, the Family Court at Tauranga appointed Public Trust Ms Campbell’s property manager.

[5]                 Ms Campbell’s medical practitioner’s 6 May 2021 opinion was, largely due Ms Campbell’s intellectual disability, she lacked capacity to make a will. Also under the 1988 Act, Public Trust was authorised to execute a will for her, the proposed terms of which provisionally were settled by the Family Court on 10 November 2022. The proposed beneficiaries were Mr Palmer and his wife, or their surviving children. Although having a proper interest in the matter, they did not wish to be heard on the authorisation.

[6]                 Ms Campbell died before the will was executed. Public Trust now seeks my declaration an evidenced document it prepared containing the proposed terms provisionally settled by the Family Court is Ms Campbell’s valid will.

Without notice application

[7]                 Because — given the Family Court’s provisional settlement of the proposed terms of the testamentary disposition, and its authorisation of Public Trust to execute Ms Campbell’s will for and on her behalf in such terms — Public Trust’s application

affects only itself, I determine the application can properly be dealt with without notice.1

Validation of wills

[8]Section 14 of the Wills 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

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

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

[9]Section 14 applies to the evidenced document, because it:

(1)is a document;

(2)appears to be a will, in that it is to be made by Ms Campbell,2 and seeks to dispose of property to which she was entitled when she died;3 and

(3)does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

[10]              I may declare the document Ms Campbell’s valid will if I am satisfied the document expresses her testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.4 I am

1      High Court Rules 2016, r 7.46(3)(b).

2      Protection of Personal and Property Rights Act 1988, s 55(1): Public Trust was authorised “to execute a will for and on behalf of” Ms Campbell.

3      Wills Act 2007, s 8(1).

4      Balchin v Hall [2016] NZHC 837 at [11].

essentially to “evaluate the relevant circumstances and reach a conclusion”.5 I am to take “a robust approach”.6 Public Trust’s intercession as property manager does not warrant any different approach.7

Does the document express Ms Campbell’s testamentary intentions?

[11]              Again — given the Family Court’s provisional settlement of the proposed terms of the testamentary disposition, and its authorisation of Public Trust to execute Ms Campbell’s will in  such  terms  —  I  am  satisfied  the  document  expresses  Ms Campbell’s (imputed) testamentary intentions,8 for disposition of her property.9

Result

[12]              I declare the original of the document marked “F” annexed to the affidavit of Maree Rose Ritchfield sworn 23 February 2023 is the valid will of Helen Gladys Campbell. I direct the costs of this application be paid out of Ms Campbell’s estate.

—Jagose J

5      Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

6      Watt v Owston-Doyle [2015] NZHC 1292 at [12], citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

7      Re Greathead [2014] NZHC 3068, [2015] NZFLR 127 at [12], citing Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [4].

8      Wills Act, s 14(2).

9      Section 8(1)(b)(i).