Estate of Tucker
[2019] NZHC 2928
•8 November 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-219-485-615752
[2019] NZHC 2928
UNDER the Wills Act 2007 and the Administration Act 1969 IN THE ESTATE OF ALBERT SUTTON TUCKER (DECEASED)
On the Papers Judgment:
8 November 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The applicants, Robert John Park and Stephen Mark Connolly (the applicants), as executors and trustees named in the last will of Albert Sutton Tucker (deceased), apply to the Court for:
(a)an order under the Wills Act 2007 declaring a codicil (the codicil) invalid; and
(b)orders under the Administration Act 1969:
(i)voiding a clause (clause 7) in the will dated 6 July 2016 (the will); and
(ii)granting probate of the will to the applicants.
[2] They also apply under r 7.46(3) of the High Court Rules 2016 (the Rules) for the applications to be dealt with without notice.
IN THE ESTATE OF ALBERT SUTTON TUCKER (DECEASED) [2019] NZHC 2928 [8 November 2019]
Background
[3] The deceased made a will dated 29 June 2016. On 10 July 2016, the deceased attempted to make a codicil to that will. At the time of his death, the most recent and last will of the deceased was dated 6 July 2016.
[4] In the will, the deceased appointed the applicants as his executors and trustees. They are the same persons as “Bobby Park” and “Steve Connelly” in the will.
[5] The deceased’s wife, children and grandchildren together comprise all of the beneficiaries under the will.
[6] All beneficiaries who have a right to claim against the deceased’s Estate are provided for in the will.
[7] The gross value of the deceased’s Estate is $315,000.00 comprising an account at Westpac of $30,000.00 and a half-share of a unit, being unit 104, Park Side Villas, 11 Manuka Street, Matamata which has been sold for $575,000.00 but cannot be settled until a transmission is completed on the granting of probate to record the title into the names of the executors and trustees.
[8] The beneficiaries under the will are in agreement that the executors and trustees should apply for probate of the will on the basis that the residue of the Estate will be distributed to the 10 grandchildren equally and without regard to the conditions in clause 7 of the will or the codicil. Each of the beneficiaries has executed a deed of family arrangement recording his or her agreement in this regard (the deed). A copy of the deed has also been executed by the applicants in their capacity as executors and trustees.
[9] The Salvation Army has expressly waived any interest it might have under the will by virtue of the codicil.
[10] By the deed each beneficiary has also agreed, amongst other things, that service of any documents on the beneficiaries that might otherwise be required for the purpose of an application for probate of the will or any associated interlocutory application is
waived by each of them but on the basis that the executors and trustees will make available to any of them upon request copies of any and all documents relating to the application for probate of the will or any associated interlocutory application.
Without notice basis – r 7.46(3) of the Rules
[11] In determining the procedure appropriate for a particular case, the overriding concern must be to adopt a procedure which will ensure that all persons which may be potentially affected by the granting of relief are given proper notice of the proceedings and a proper opportunity to be heard. The procedure should be consistent with the overriding principle that all parties that may be affected must be given notice such that applications are dealt with fairly promptly, inexpensively and efficiently.
[12] Where all those who could be affected consent, and where there are no other factors which would make such a course inappropriate, the interests of justice may require that the application be dealt with on a without notice basis in terms of r 7.46(3)(e) of the Rules.
[13] Here, all those persons who may be potentially affected by the granting of relief consent to the applications including the application for probate of the will being dealt with on a without notice basis. There is no other person to whom notice of the application ought to be given and the interests of justice require the application to be determined without notice under rule 7.46(3)(e) of the Rules. Such procedure is fair, prompt and efficient in these circumstances.
The validity of the codicil
[14] On 10 July 2017, the deceased purported to make a homemade codicil. The codicil purports amongst other things:
(a)to make the gift to one of the grandchildren, Jasmine Jayne Tucker, subject to a further forfeiture condition contingent on whether she may be suffering from a drug addiction; and
(b)to bequeath to the Salvation Army any gift to any of the grandchildren forfeited under clause 7 of the will.
[15]The applicants take issue with the following elements of the codicil:
(a)the codicil is not witnessed as is required by section 11(4) of the Wills Act 2007;
(b)the codicil is expressed to be a codicil to a will dated 29 June 2016, whereas the valid will is the will dated 6 July 2016; and
(c)the codicil purports to change clause 7 of the will to make the gift to one of the grandchildren, Jasmine Jayne Tucker, subject to a forfeiture condition in the event she should be suffering from a drug addiction, the event of which is not capable of being precisely and distinctly ascertained.
[16] The codicil is not witnessed, which is not necessarily determinative of its validity. It does refer to the wrong will (which is also not determinative of its validity either). It is void for uncertainty so far as it relates to clause 7 and the forfeiture provision in relation to the grandchild Jasmine Tucker is concerned for similar reasons to those provided at [20] to [24] of this decision. Looking at the cumulative effect of the deficits in the codicil, I am satisfied it should be declared invalid.
The validity of clause 7
[17] The will is in simple form. The will is in identical terms to a previous will of the deceased dated 29 June 2016, save for an immaterial difference in the meaning of the language used in clause 7 of each document describing certain intangible assets.
[18] The applicants argue that the forfeiture provisions of clause 7 ought to be declared void for uncertainty.
[19]Clause 7 of the will dated 6 July 2016 states:
I further direct that, as our family are all settled in their own homes, I therefore bequeath
my share of the proceeds from sale of my home, along with the residue of my cash assets, as listed below, be divided in equal share to our 10 grandchildren; subject to any of said grandchildren, living in a De Facto, civil union, gay or lesbian, life style, be excluded from such gifts and legacies herein described…
[20] The test to be applied in determining the degree of certainty required in such a condition is clearly established. Where a vested estate is to be defeated by a condition on a contingency that is to happen later, that condition must be such that the Court can see from the beginning precisely and distinctly upon the happening of what event it was that the preceding vested estate was to determine.1
[21] In determining issues of uncertainty, the Court needs to be aware of the distinction between “conceptual uncertainty” and “evidential uncertainty”. Conceptual uncertainty arises where there is uncertainty as to the events prescribed by the testator as those on which the condition is to operate. Evidential uncertainty arises when there is difficulty in ascertaining whether those events (sufficiently prescribed by the testator as a matter of definition) have happened or not.2
[22] The question in this case is not whether on any particular facts that existed at any time the grandchildren had entered into a de facto relationship, a civil union, or a gay or lesbian lifestyle, but whether the concept of entering into the relationships and the lifestyles described the parties concerned can see precisely and distinctly on the happening of what event or events that the relationships and lifestyles had been entered into.
[23] Significant uncertainties arise, for instance: Is it sufficient if the relationship is commenced even if it is intended only to be temporary? If a degree of permanence is required before the relationship or the lifestyle can be said to have been entered into, what is that degree of permanence? Do those relationships and lifestyles import orthodox notions of cohabitation, sexual relations, sharing of assets? If so, to what extent in each case?
[24] For these reasons I find as Tompkins J did in Re Lichtenstein that the relationships and lifestyles described in clause 7 are not capable of being precisely and distinctly ascertained and the forfeiture condition “subject to any of said grandchildren, living in a de facto, civil union, gay or lesbian, lifestyle, be excluded” shall be deleted from the will as being invalid.
1 Re Lockie [1945] NZLR 230; Re Biggs [1945] NZLR 303.
2 Re Lichtenstein [1986] 2 NZLR 392 (HC) at 395.
Conclusion
[25]The codicil is declared to be invalid.
[26] The condition in clause 7, that the gift to the children is “subject to any of said grandchildren, living in a de facto, civil union, gay or lesbian, lifestyle, be excluded” is void for uncertainty.
[27]Probate of the will is granted to the applicants.
Doogue J
Solicitors:
Jones Howden, Matamata
Copy to:
Mr Fisher, Auckland
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