Estate of Capstick
[2018] NZHC 359
•8 March 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-185
[2018] NZHC 359
UNDER the Wills Act, s 14 IN THE MATTER OF
the Estate of Paula Jane Capstick
IN THE MATTER OF
An application for an order that a document be declared a valid will of the deceased PAULA JANE CAPSTICK
BETWEEN
JONATHAN IRWIN FARQUHAR AND KATHRYN MARY SOMMERS
Applicants
Hearing: 7 March 2018 Appearances:
M M Bell for the Applicants
Judgment:
8 March 2018
JUDGMENT OF MANDER J
[1] The applicants, Jonathan Farquhar and Kathryn Sommers, seek an order under the Wills Act 2007 for a declaration that a draft will and a solicitor’s file note be declared to constitute the valid will of Paula Jane Capstick. The applicants were nominated by Ms Capstick to be her executors and trustees in the draft will.
The evidence
[2] On 12 February 2016, Lorrin Currie, a solicitor of Kaiapoi, took instructions from Ms Capstick over the phone to update her will. Ms Capstick had previously signed a will. However, as she explained to Ms Currie, she had been considering changes to her will for some time because her mother had passed away since the making of her last will in 2012.
RE ESTATE OF CAPSTICK [2018] NZHC 359 [8 March 2018]
[3] Ms Capstick had available to her a copy of her 2012 will, and Ms Currie took Ms Capstick’s instructions regarding the changes she wished to make. These were as follows:
(a)Executors: As her mother had passed away she was to be removed as an executor. Ms Capstick was happy to leave one of the existing executors, Mr Farquhar, as an executor, but wished to have her friend, Ms Sommers, added as an executor in substitution of her deceased mother.
(b)Special Gifts: Ms Capstick wanted her jewellery and her mother’s jewellery to be distributed among members of her second cousins, Dawn Farquhar and Lois Edwards’ families (the cousins), although her trustees were to retain the final say on who was to get what items. Ms Capstick specifically listed certain items of jewellery that had been passed to her from her mother and nana which she wanted to remain in her family. Ms Capstick also wanted a significant piece of jewellery to go to Ms Somers’ daughter, Jayde, but did not state anything specific.
(c)Residue: A half share in the residue of the estate to Ms Sommers’ children was to remain unchanged from the previous will. One quarter was to go to Neville Ahlfeld and one quarter to the grandchildren of the cousins. The age of attainment was to be 20 years, but Ms Capstick was very clear that the grandchildren should have the ability to access the funds for ongoing education and medical needs prior to reaching 20 years.
[4] These instructions were recorded by Ms Currie and annexed to her affidavit filed in support of the application.
[5] After taking instructions, Ms Currie prepared a new will which she posted to Ms Capstick on 18 February. On 26 February, Ms Capstick contacted Ms Currie advising that she had reviewed the draft and wished to make the following changes:
(a)At cl 4(a) and (b), Ms Capstick wanted the wording changed so there was no reference to excluding items from her mother’s and nana’s jewellery in the gift to Ms Sommers and Jayde. All jewellery was to be available for them to choose from, with the remainder to stay in the family through her cousins, Ms Farquhar and Ms Edwards.
(b)At cl 4(c), Ms Capstick requested the wording to be changed from “grandchildren” to “members of her cousins’ immediate families”. Ms Capstick also wanted the gift worded more broadly, rather than just jewellery. It was proposed that the term “items of personal effects” be used, and Ms Capstick was happy with that.
(c)Jayde’s middle name was added.
(d)Ms Capstick also wanted any beneficiaries named in her will to have the opportunity to choose any personal items of hers they wanted with the exclusion of her own and her mother’s jewellery. She wanted the executors to have the final say on this.
(e)At cl 5(c), Ms Capstick wanted the age of attainment lowered to 18 years, and was keen to ensure that any beneficiaries were able to have access to the money early as one of the grandchildren had learning difficulties. Ms Currie and Ms Capstick discussed cl 7(c) which provided for this, and Ms Capstick was happy with that.
(f)Ms Capstick asked for cl 6(a) to be deleted because she did not want Mr Ahlfeld’s children to be able to gain any benefit from her assets if he was to pass away first. Ms Capstick told Ms Sommers that neither she nor Mr Ahlfeld had anything to do with his children.
[6] Ms Currie deposed that they discussed Mr Farquhar and Ms Sommers having control of her estate funds, and that as trustees they would be able to make decisions of advancement to any minors. There was discussion regarding a gift to the parents of any minors, with a request that the funds be used for the children, and the risks of such
an arrangement. Ms Capstick advised Ms Currie she was happy for the trustees to remain in control of the funds and any advances to the minors.
[7] Ms Currie’s discussion on 26 February with Ms Capstick involved going through the draft will clause by clause. The changes were recorded in a file note attached to Ms Currie’s affidavit in support. Ms Capstick requested that the will be redrafted to incorporate those changes.
[8] At the time of speaking with Ms Currie, Ms Capstick did not give any indication that she was seriously ill. In fact, Ms Capstick suffered from spina bifida throughout her life and her health was deteriorating. It is apparent the reason she did not attend personally at the solicitor’s office was because of her limited mobility.
[9] In her affidavit, Ms Currie deposed that she had no reason to believe at the time of speaking with Ms Capstick that she was under any undue influence, and she appeared to her to be mentally competent. Ms Capstick was fully aware of what her assets were, and her intentions were clear regarding the distribution of those assets following her death. There is no suggestion nor indication in the evidence that Ms Capstick was other than able and competent to provide instructions to her solicitor, nor is there any basis to suggest she was acting other than in accordance with her own free will.
[10] Ms Currie redrafted the will on Monday, 29 February 2018, making the alterations as had been discussed in her conversation with Ms Capstick on the Friday, three days earlier. However, after completing the redraft, Ms Currie was advised Ms Capstick had passed away the previous day, Sunday 28 February. Accordingly, Ms Capstick did not have the opportunity of seeing the redrafted will for confirmation prior to signing. A copy of the will incorporating the amendments discussed with Ms Capstick on 26 February was attached to Ms Currie’s affidavit. She confirmed that the will represented Ms Capstick’s final testamentary intentions.
[11] Ms Sommers was Ms Capstick’s best friend. They had known each other for some 37 years and Ms Sommers deposed they had always been very close. She confirmed that Ms Capstick suffered from spina bifida and had a lifetime of physical
difficulties as a result. Ms Sommers had several conversations with Ms Capstick regarding her will up until the day before she passed away, including on 22 January 2016 which she had spent with Ms Capstick to celebrate their birthdays.
[12] Ms Sommers deposed that since her mother’s passing in November 2014, Ms Sommers health had begun to deteriorate and she had begun thinking about whether giving her assets to charity, as provided for in her original will, was sensible. On several occasions Ms Capstick mentioned to Ms Sommers that she had decided to change her will. As a result of various conversations Ms Sommers had with Ms Capstick regarding the changes she wished to make to her will, she deposed that her friend’s intentions were always clear. She wanted her own and her mother’s jewellery to go to the people she loved, namely her cousins in order that the jewellery pass down the family line. She wanted one share of her estate to go to those cousins’ grandchildren and that another share go to Mr Ahlfeld, her deceased mother’s second husband whom she had lived with prior to her mother’s death and continued to live with until the time of her own death. Ms Sommers deposed that Ms Capstick felt she had grown closer to Mr Ahlfeld since her mother’s passing.
[13] Ms Sommers’ understanding of Ms Capstick’s intention for her estate was that it was to be split into four parts. As provided in the 2012 will, two parts were to go to Ms Sommers children who Ms Capstick had known their whole lives and was an aunty to them. One part was to go to Mr Ahlfeld in acknowledgment of his support of Ms Capstick. One part was to go to her cousins’ grandchildren, and there was to be a gift of Ms Capstick and her mother’s jewellery to her cousins to be passed down the family line, including them choosing something for themselves. Ms Sommers’ daughter was also to choose a piece of jewellery. Ms Sommers deposed that Ms Capstick believed her cousins would know who to pass the jewellery to, and she was very clear she wanted to keep all of her own and her mother’s jewellery in the family.
[14] Ms Sommers was with Ms Capstick on Friday, 26 February, the same day she rang Ms Currie to discuss the changes and corrections she wanted to make to the draft will. Ms Sommers inquired from Ms Capstick if she wanted to make any changes or notes on the draft will and perhaps sign that. However, Ms Capstick said that she had spoken to her solicitors and they were going to make the corrections to enable her to
sign the will on the next Monday. Unfortunately, Ms Capstick died on the weekend before that was able to happen.
[15] Ms Sommers also deposed that Ms Capstick had told her that she had given some thought to her provision for the Royal New Zealand Foundation for the Blind and the Kaiapoi Borough School in her 2012 will. She considered “it was silly” to leave her savings to charities when she had not really had anything to do with them. In relation to Mr Ahlfeld, Ms Sommers deposed that Ms Capstick had told her that she thought she should leave something for him as she had grown closer to Mr Ahlfeld, and he had cared for her after her mother’s passing. Ms Capstick felt she wanted to leave something to Mr Ahlfeld in acknowledgment of that assistance.
[16] Ms Farquhar also provided an affidavit in support of the application. She confirmed the reasons why Ms Capstick wanted to change her will. Ms Farquhar had known Ms Capstick her whole life. In her affidavit, she deposed that Ms Capstick suffered from double-curvature of the spine and had become increasingly unwell in the year prior to her death. Ms Capstick had stopped work and become more dependent on family members. Ms Farquhar spent many hours sitting with Ms Capstick in the months before her death, during which they had numerous conversations regarding her will.
[17] Ms Farquhar confirmed that Ms Capstick mentioned several times that she was unhappy with her existing will and, with the deterioration in her health, she was keen to change her will to acknowledge the support of Mr Ahlfeld, and to ensure her and her mother’s jewellery were passed down to the family.
[18] Ms Farquhar confirmed that Ms Sommers was “a very special friend” to Ms Capstick and “had been with [her] all the way”. They had met in hospital when Ms Capstick was very young, and she had always wanted to acknowledge Ms Sommers in her will by leaving something to her children. Ms Farquhar confirmed that Ms Sommers’ children knew Ms Capstick as “Aunty Paula”, and that Ms Capstick adored them. Ms Capstick had always been very clear that Ms Sommers’ children would receive something from her estate upon her death.
[19] Ms Farquhar visited Ms Capstick on the Friday before her death. She was aware that Ms Capstick had received and read the draft will from her solicitors and was generally happy with it, but wished to make a few minor changes. Ms Capstick had told Ms Farquhar how she wished her estate to be divided, which confirms Ms Capstick’s intentions, as set out at [3]-[5]. Ms Capstick was insistent that all her jewellery and that of her mother was to remain in the family.
The beneficiaries of the wills
[20] A comparison of the differences between the main terms of the 2012 signed will and the 18 February draft reveals the following differences:
(a)The proposed will differed in that Ms Sommers replaced Ms Capstick’s mother as co-executor and trustee. There were also some specific gifts included in the unsigned will of 2016.
(b)In terms of the beneficiaries of the unsigned will, the residuary estate was still to be split into four parts. Both wills were the same in that half of the residue of the estate, or two parts, were to go to the children of Ms Sommers. However, in the signed will of 2012, one part was to go to the New Zealand Foundation for the Blind and one part to the Kaiapoi Borough School. In the unsigned 2016 draft will the Foundation for the Blind and the Kaiapoi Borough School were excluded, with one part to go to Mr Ahlfeld and the other to the cousins’ grandchildren.
[21] It follows that the two affected beneficiaries from the 2012 will should an order be made to validate the 18 February draft and the file note of 26 February, are the Kaiapoi Borough School and the New Zealand Foundation for the Blind. The Kaiapoi Borough School provided written consent in response to the original application which sought an order validating the will prepared by Ms Currie on 29 February 2016. The application was subsequently amended seeking validation of the 18 February draft and Ms Currie’s file note of 23 February. The amended application was also served on the Kaiapoi School, however, it has taken no further steps in the proceeding. The amended application is to the same effect as the original application, at least in terms of the
school’s position, and I consider its formal written consent to the original application is effective for the purposes of the amended application in light of it having taken no further steps after its service.
[22] The Royal New Zealand Foundation for the Blind filed and served a notice of appearance reserving its right to be heard on the application. The Foundation initially advised that it did not necessarily oppose the claim, however, it wanted further information for Ms Capstick’s reasons for making the changes to her will. There were discussions between the applicants’ solicitors and counsel for the foundation before it filed a memorandum formally advising that it abides the decision of the Court.
Statutory framework and applicable principles
[23] The formal requirements of a will are set out at s 11 of the Act. These include that a will be signed and witnessed.1 Notwithstanding non-compliance with s 11, this Court may make an order declaring a document to be a valid will. Section 14 of the Act provides as follows:
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.
1 Wills Act 2007, s 11(3) and (4).
[24] The first requirement is that the document appear to be a will. In Re Campbell, MacKenzie J observed that the requirement that a document must appear to be a will is concerned with its content and what it conveys, rather than its form.2 The inquiry is whether the document contains any or all of the elements described in s 8(1)(b) of the Act, namely whether it seeks to dispose of the property of a person upon his or her death. The draft will and the amendments to that document recorded in the solicitor’s file note are clearly to that effect. The second and third requirements of s 14(1) are established. The documents sought to be validated were neither signed nor witnessed, and came into existence in New Zealand.
[25] The essential element before a non-complying document can be validated as a will is that the Court must be satisfied that it expresses the deceased person’s testamentary intentions.3 In Re Campbell, MacKenzie J recognised that the evidential burden required to satisfy s 14 is not subject to a high threshold, and that the provision is remedial in nature. Where there is evidence of the deceased’s testamentary intent, it is better to give effect to that intent in preference to giving effect to any previous will.4
[26] While it has been said the Court should have before it cogent evidence that the document reflects a deceased person’s testamentary intentions, as MacKenzie J observed in Re Campbell, that is nothing more than the inherent requirement that the Court be satisfied that the document(s) in question express those intentions. It does not imply that, in reaching the required state of satisfaction, the Court is to apply any higher standard of proof than the ordinary civil standard.5
[27] That approach is reflected in the view expressed by Davidson J, in Re Kirner, who stated:6
[22] It appears from a review of the authorities that a robust approach to such applications has been taken. Where the s 14 power is both broad and remedial in purpose, the adoption of a robust approach still requires the Court to carefully consider whether the evidence put before it, considered in
2 Re Campbell [2014] NZHC 1632 at [11].
3 Wills Act 2007, s 14(2).
4 Re Campbell, above n 2, at [18].
5 Re Campbell, above n 2, at [22].
6 Re Kirner [2015] NZHC 1873 at [22].
aggregate, is such that it can be satisfied that the document put before it, said to be a will, does accurately reflect the testamentary intentions of the deceased.
Decision
[28] In the present case, the applicants seek to have two documents validated, being the draft will sent to Ms Capstick by her solicitor on 18 February and the file note of Ms Currie dated 26 February. This Court has previously validated a solicitor’s written note recording a will-maker’s communicated instructions for a new or changed will.7 It has also validated a combination of documents, including handwritten notes by a deceased, a will instruction sheet signed by a deceased, and file notes by solicitors reflecting a deceased’s testamentary intentions.8 A recent example of several documents being declared a valid will is Pfaender v Gregory, where a draft will, contemporaneous notes of conversations with instructions of changes to be made to the draft, and transcripts of the recorded exchanges, were accepted by Toogood J as constituting the deceased’s testamentary intentions.9 The word “document”, in accordance with orthodox statutory interpretation, is to be imported as including the plural.10
[29] All persons who could potentially be affected have been served and, as already observed, the gateway requirements set out in s 14(1) of the Act are met. The only, albeit essential, issue to be determined is whether the documents express Ms Capstick’s testamentary intentions.
[30] Ms Capstick clearly wished to change her existing will. She engaged with her solicitor, Ms Currie, and obtained a draft document which reflected her changed testamentary intentions. Ms Capstick carefully went through that draft with Ms Currie, indeed clause by clause, confirming the amendments she wished to make after discussing those changes with Ms Currie. It was from that discussion that a final draft was completed on 29 February incorporating the changes Ms Capstick had confirmed to Ms Currie she wished to make to the original draft. That document
7 See Re Taigel [2014] NZHC 844 and Re Estate of Feron [2012] NZHC 44.
8 Winterburn v Wilson [2016] NZHC 1422.
9 Pfaender v Gregory [2018] NZHC 161.
10 Winterburn v Wilson, above n 8, at [24].
reflected the combined effect of the 18 February draft and Ms Currie’s file note of 26 February.
[31] In the original application it was the draft will of 29 February which the applicants sought to validate. However, the applicants took the view, based on the approach taken in Re Estate of Feron, that because that document was created after Ms Capstick’s death it was not capable of being validated as her will.11 As a result, the application was amended and validation of the 18 February draft and Ms Currie’s file note of 26 February were sought in combination to be validated. It is to be noted that Toogood J, in Pfaender v Gregory, has recently disagreed with the approach taken by Whata J in Re Estate of Feron. Toogood J held that a transcript brought into existence after the death of the will-maker could constitute a will or, at least in combination with other documents, could have that effect so long as it could be held on the evidence to reflect the will-maker’s intentions.12
[32] Ms Sommers and Ms Farquhar have confirmed in their evidence the reasons why Ms Capstick wanted to amend her will, and the reasons for her changed testamentary intentions. They were also in contact with Ms Capstick at the time she was engaged with her solicitors to change her will. Their evidence confirms Ms Capstick’s testamentary intentions as they were communicated to Ms Currie and reflected in the documents now sought to be validated as Ms Capstick’s will.
[33] I am satisfied there was no intention on the part of Ms Capstick to retain her previous 2012 will, and that the draft will of 18 February together with the file note of 26 February exhibit Ms Capstick’s testamentary intent in relation to the disposal of her assets after her death. It is possible that when reviewing the draft Ms Capstick, who demonstrated considerable care regarding the detail of the will, may have pointed out grammatical or minor drafting errors in the second draft of 26 February. Ms Sommers deposed that in making the reasonably minor changes or corrections on 26 February that Ms Capstick was not impressed with some errors in the draft sent for her consideration. That tends to demonstrate the considerable care with which Ms Capstick approached the exercise.
11 Re Estate of Feron, above n 7, at [13].
12 Pfaender v Gregory, above n 9, at [34].
[34] More importantly, apart from providing even greater confidence that the 18 February draft and Ms Currie’s file note in combination reflected Ms Capstick’s testamentary intentions, it is apparent any further amendments to the 26 February draft would only have related to minor detail, perhaps to the spelling of names, or the inclusion of a beneficiary’s full name. There is no indication that the division of her estate or the disposition of her assets, as recorded in the earlier draft and Ms Currie’s file note, which in combination was reflected in the final draft of 29 February, did other than reflect Ms Capstick’s testamentary intentions.
[35] The situation can be distinguished from those cases where it was anticipated the deceased’s testamentary intentions would be further refined following the provision of further information, or following anticipated discussions with legal advisors.13 There is no suggestion or indication that Ms Capstick intended to make any further changes to the disposition of her estate. There are cases where a person has expressly advised of a wish to make changes, including to amounts to be gifted, and died before advising of such changes. In such situations the Courts have recognised that the document may not have expressed the deceased’s final testamentary intentions because of the plans to make further changes.14 That is not the position in the present case.
[36] Being satisfied that, in combination, the draft will prepared by Ms Currie and posted to Ms Capstick on 18 February 2016 and Ms Currie’s file note of 26 February express Ms Capstick’s testamentary intentions, there will be an order declaring those documents valid as Ms Capstick’s will notwithstanding non-compliance with s 11 of the Act.
Order
[37] I make an order under s 14(2) of the Act declaring the deceased’s draft will, annexed as “D” to the first affidavit of Lorrin Currie, sworn on 19 January 2017, and the file note of Lorrin Currie, annexed as “LC1” to her second affidavit, sworn on 21 July 2017, to be the valid will of the deceased, Paula Jane Capstick.
13 See White v White [2014] NZHC 865.
14 See Naidu v Agnew [2012] NZHC 2134.
[38] In consolidating these two documents, I declare the following terms to be the last will of the deceased, Paula Jane Capstick.
(a)Any previous wills or testamentary dispositions are revoked.
(b)Jonathan Irwin Farquhar and Kathryn Mary Sommers are to be trustees and executors of the will.
(c)The deceased shall be buried in the Kaiapoi Public Cemetery in the double plot purchased by her mother, adjoining the grave of her late brother Blair Capstick.
(d)All items of jewellery and personal effects owned by the deceased at the time of death will go as follows:
(i)To allow Kathryn Mary Sommers in her absolute discretion to choose one piece of the deceased’s jewellery.
(ii)To allow Jayde Ellen Sommers to choose one piece of the deceased’s jewellery.
(iii)The remaining items of jewellery will be distributed in accordance with any list the deceased may deposit with her will or wished made known to her trustees, however, in the absence of a list or wishes being made known, the trustees will give all remaining items to Dawn Yvonne Farquhar and Lois Edwards to distribute among members of their immediate family in their absolute discretion.
(e)All remaining chattels owned by the deceased shall go to the trustees to allow any beneficiaries named in the will to advise of any items they wish to have as gifts. These gifts are to be at the absolute discretion of the trustees and their decision shall be final. Any items not chosen by the abovenamed beneficiaries will form part of the deceased’s residuary estate and be distributed as per sub-para (f).
(f)After payment of all debts, funeral and testamentary expenses, the trustees are to hold the balance of the deceased’s estate upon trust and divide into four (4) parts as follows:
(i)As to two parts for such of the children of the deceased’s friend, Kathryn Mary Sommers (including Ben Sommers) who are living on her death, and if more than one then in equal shares, upon attaining the age of 18 years.
(ii)As to one part to the deceased’s stepfather, Neville Thomas Ahlfeld, if living at her death.
(iii)As to one part to the grandchildren of Dawn Yvonne Farquhar and Lois Edwards who are living at her death, and if more than one in equal shares, upon attaining the age of 18 years.
(g)TRUST FAILURE
As set out in clause 6 of the draft will referred to in [37] of this order.
(h)TRUSTEE POWERS
As set out in clause 7 of the draft will referred to in [37] of this order.
(i)PROFESSIONAL SERVICES
As set out in clause 8 of the draft will referred to in [37] of this order.
(j)HEADINGS
As set out in clause 9 of the draft will referred to in [37] of this order.
Solicitors:
Corcoran French, Christchurch
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