Estate of Piper - [2021] NZHC 534

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000395

[2021] NZHC 534

UNDER Section 14 of the Wills Act 2007

IN THE MATTER

of an application to validate a will of Olive Ruby Piper

BETWEEN

PUBLIC TRUST

Applicant

Hearing: On the papers

Judgment:

16 March 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 16 March 2021 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Thomas Dewar Sziranyi Letts, (Joshua Pietras), Lower Hutt

Re Estate of Olive Ruby Piper [2021] NZHC 534 [16 March 2021]

Introduction

[1] The applicant, the Public Trust, has filed an originating application seeking an order declaring that a document referred to in an affidavit of Danielle Neru dated 9 March 2021 is the last will and testament of the deceased, Olive Ruby Piper. It also seeks to dispense with service of the application on the beneficiaries named in the document and an order appointing it as executor and trustee of the deceased’s estate.

[2] The application is brought pursuant to s 14 of the Wills Act 2007. That section applies to a document that appears to be a will but does not comply with s 11 of the Act. This Court can make an order declaring the document a valid will if it is satisfied that the document expresses the deceased’s testamentary intentions. The Court can consider the document, evidence in relation to its signing and attestation, evidence in relation to the deceased’s testamentary intentions and evidence of statements made by the deceased.

Background

[3] The deceased’s last formal will is dated 7 March 2011. She appointed the Public Trust as her executor and trustee. She bequeathed $50,000 to each of her three nephews and directed that the residue of her estate was to be divided into five equal shares, one share going to each of her five siblings.

[4] The deceased contacted the Public Trust on 6 March 2020 to arrange an appointment in regard to her will. The Public Trust sent a proforma response but did not deal with the deceased’s request promptly. Rather it arranged a telephone consultation with the deceased on 23 March 2020.

[5] On 18 March 2020, the deceased sent the Public Trust a list of the prospective beneficiaries she wanted to include in her will. The list named the deceased’s three nephews and her five siblings. It did not however specify what share or shares each was to take.

[6] The telephone consultation proceeded on 23 March 2020. Ms Neru says that she took steps to confirm the deceased’s identity. She says that the deceased advised

her that she was close to her three nephews and that she wanted each of them and her five siblings to receive an equal share of her residuary estate. The deceased also wanted to gift a martial arts book to her former martial arts teacher.

[7] Ms Neru did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 534
Decision Date: 16 March 2021

CaseChat Overview and Summary

The High Court of New Zealand was tasked with determining whether a document prepared by the Public Trust and sent to Olive Ruby Piper on 22 April 2020, which was not signed by the deceased prior to her passing on 3 July 2020, was to be considered her last will and testament. The Public Trust, acting as the applicant, sought a declaration that the document was indeed the deceased's last will and testament, as well as orders appointing it as executor and trustee of the deceased's estate. The case hinged on the interpretation and application of Section 14 of the Wills Act 2007, which allows for the validation of a document as a will if it appears to be one and if the Court is satisfied that it reflects the deceased's testamentary intentions, despite not complying with the formal requirements of the Act.

The central legal issue was whether the document in question, which was not signed by the deceased before her death, truly reflected her testamentary intentions at the time of her passing. The Court had to consider the circumstances surrounding the creation and transmission of the document, the content of the document, and whether there was sufficient evidence to conclude that the document represented the deceased's intentions at the time of her death. The Court also needed to evaluate the impact of the considerable delay between the drafting of the document and the deceased's death on the validity of the document as a will.

The Court found that the document did not sufficiently express the deceased's testamentary intentions at the time of her death. The significant time lapse between the giving of instructions, the forwarding of the draft will, and the deceased's death, coupled with the absence of any confirmation from the deceased that the document accurately reflected her intentions, led the Court to conclude that there was insufficient evidence to validate the document as a will under Section 14 of the Wills Act 2007. The destruction of handwritten notes taken during the initial discussions further complicated the ability to ascertain the deceased's intentions. Consequently, the application by the Public Trust was declined.

Orders