Estate of Trounce

[2022] NZHC 52

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-28

[2022] NZHC 52

UNDER

the Wills Act 2007

IN THE MATTER

of the estate of Frederick James Trounce

DIANA SHEREE GARRETT AND TREVOR DAVID GARRETT

Applicants

CIV-2022-485-30

UNDER

the Wills Act 2007

IN THE MATTER

of the estate of Gwenlyn Amy Trounce

LYN ELLEN THOMPSON AND BARBARA ANN PRATT

Applicants

Teleconference:	27 January 2022
Appearances:	W M Patterson for the Applicants
Judgment:	28 January 2022

JUDGMENT OF COOKE J

[1]    By two parallel without notice originating applications dated 16 December 2021 the applicants seek orders declaring that a document created by Mrs Gwenlyn Trounce and a subsequent document created by Mr Frederick Trounce be declared as valid codicils to their wills notwithstanding that they do not meet the requirements of the Wills Act 2007 (the Act). The applications are supported by an affidavit of the

RE ESTATE OF FREDERICK JAMES TROUNCE [2022] NZHC 52 [28 January 2022]

applicants dated 9 December 2021, and a memorandum of counsel dated 16 December 2021.

[2]    The applications were referred to me as Duty Judge and, subject to the telephone conference with counsel I refer to in paragraph [17] below, have been determined by me on the papers.

Relevant background

[3]    Mr and Mrs Trounce were married for some 24 years. There were no children of their relationship, but each had children and then grandchildren by virtue of previous relationships.

[4]    They both made wills dated 8 April 2003. They largely reflected each other with each leaving one half their estate to their own children and grandchildren, and the other half to the children and grandchildren of their spouse.

[5]    Mr and Mrs Trounce later made a decision to sell the property in which they lived, which was owned by Mrs Trounce, to move to Christchurch. It is not clear what they intended in terms of the impact this might have on what they had contemplated by their wills.

[6]    On 8 April 2015, some five days before her death, Mrs Trounce made a purported amendment to her will by a codicil in the following terms:

Amendment to Will of G A Trounce

I would like to amend my will to read the following.

As we have just sold the property held in my name at 127 Glamorgan Drive Torbay for $1,075,000 and are in the process of building a property in Preston’s Development Christchurch which will be financed out of the sale of the property at 127 Glamorgan Drive with title being tenants in common with 33% (1/3) to my husband Fredrick James Trounce and 67% (2/3) to Myself.

In the event of my death I would like my share of the Prestons Rd property to be divided between my two daughters Lyn Ellen Thompson and Barbara Ann Pratt equally (i.e. 1/3 each).

The money left over from the sale of 127 Glamorgan Drive after the purchase of the new property is to be divided into thirds with 1/3 to my Husband and

1/3 each to my daughters that is 1/3 to Lyn Ellen Thompson and 1/3 to Barbara Ann Pratt.

I would like my personal items to be distributed according to the list of bequests I have placed with my will.

[7]    This document was witnessed by Mrs Lyn Thompson on the same day. As can be seen this document departs from the sharing contemplated by the 2003 wills.

[8]    After Mrs Trounce’s death Mr Trounce became aware of Mrs Trounce’s codicil and indicated an intention to take steps, if necessary by making a claim against her estate or resisting a claim that the codicil she had signed be declared valid under s 14 of the Act. He himself then sought to make a codicil to his own will reflecting his intentions. It was created by him on his iPad and was unsigned. It materially stated:

…

Add new clause 4

4.          To my daughters I bequeath a sum equal to that which has been guaranteed to my two step daughters in the final settlement of my late wife Gwenlyn Amy Trounce’s estate (still in dispute at the time of writing) to be shared equally by them.

Add new clause 5

5.          The balance of my estate, if any, I leave to my trustees to divide half to my children and grand children the other half I leave to my step children and step grandchildren to be divided at the discretion of my trustees who are fully aware of my desire to include my grandchildren and step grandchildren as beneficiaries of my estate up to a maximum of $25,000 each.

This amendment has been drafted by me at my residence 70 Metehau Street Marshland Christchurch on my I.Pad pending settlement of my late Wife’s estate and the making of a new will in view of the changed circumstances due to her death.

[9]    In effect Mr Trounce was attempting to counteract the effect of his wife’s codicil. Both codicils fail to meet the requirements of s 11 of the Act.

[10]   This somewhat complicated situation has now been addressed sensibly by the parties through a settlement, albeit this has taken some time to negotiate. A Deed of Settlement they have signed contemplates equal division of the combined estates along the lines of the 2003 wills. There are some further legal complexities as some of the

grandchildren have not yet turned 21 years of age so two family trusts have been established.

[11]   The Deed of Settlement contemplates both of the codicils being validated by the Court, with the proposed settlement then being implemented. In other words the settlement is conditional on the validation of both the invalid codicils under s 14 of the Act.

Approach to validation

[12]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.

[13]In Re Estate of Campbell MacKenzie J held:1

[11]    That document must meet the three requirements in s 14(1). The first is that it appears to be a will. From the cases in which the section has been applied, it emerges that this requirement is concerned with the content of the document and what it conveys, rather than its form. As well as documents which have the physical form of a will, such as draft wills and unsigned or wrongly signed wills, documents which do not have a form customarily expected of a will have been accepted as meeting this requirement. Informal

1      Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706.

documents which have been validated include documents which the deceased has prepared, such as a suicide note.2 They also include documents which the deceased has not prepared, such as a solicitor’s file note of instructions.3 The essential inquiry, under s 14(1)(a), is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act. The document sought to be declared valid here meets that requirement, in that it was in a form suitable for signature.

[14]In Re Estate of Feron Whata J held:4

[11]  In Re Estate of Murray5 MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14 (2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

[15]The definition of a will includes a codicil as a consequence of s 8(3)(e).

Application here

[16]   This case has somewhat unusual circumstances. That is because the parties have essentially reached a settlement which determines what should occur with the estates of Mr and Mrs Trounce. That Deed of Settlement contemplates restoring the position, more or less, to that which arose under the 2003 wills before either of the codicils were brought into existence. Yet the applications are essentially to validate the first invalid codicil created by Mrs Trounce, and then the subsequent invalid codicil created by Mr Trounce to reverse the effect of Mrs Trounce’s codicil.

[17]   In those circumstances I convened a telephone conference with Mr Patterson to discuss the position with him, including by enquiring whether the more straightforward approach might not be simply to ignore both of the invalid codicils to allow the 2003 wills to take effect. He explained to me that that course had not been adopted for two main reasons. The first was that each of the codicils had indeed

2      Re MacNeil (2009) 10 NZCPR 770 (HC).

3      Re Taigel [2014] NZHC 844.

4      Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.

5      Re Murray (deceased) HC Masterton CIV 2011-435-000178, 20 December 2011

reflected the intentions of each of Mr and Mrs Trounce, and it was thought that those intentions should be brought to the attention of the Court. Secondly, in the case of Mr Trounce’s codicil, he has changed the executors of his estate, and it was thought appropriate to give effect to that intention. There is then a third consideration, which is that the settlement in the Deed of Settlement is conditional on the Court approving the codicils, and whilst the parties may have been able to address the situation effectively by an alternative approach, I agree that it would be appropriate for the Court to give effect to the terms of the settlement they have negotiated in these circumstances.

[18]   In any event, applying the approach to s 14 referred to above, I am satisfied that effect should be given to both codicils. They were carefully expressed testamentary wishes from each of Mr and Mrs Trounce, but they failed to comply with the formalities of the Wills Act. The applications should accordingly be granted recognising that the substantive position will then be regulated by the Deed of Settlement.

[19]   The application includes an application that s 13(1) of the Act does not apply to the witnessing of Mrs Trounce’s codicil (together with an application that this proceed by way of originating application) and I am also satisfied that such orders are appropriate in the circumstances. Equally I am satisfied that it was appropriate for this application to have been made without notice, and without serving any other party, as the Deed of Settlement has been signed by all relevant parties.

[20]   Accordingly the orders as sought are granted. Leave to apply for any further orders is also reserved.

Cooke J

Solicitors:
Patterson Hopkins, Auckland for the Applicants