Fowler v Hizo
[2024] NZHC 3881
•18 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-805
[2024] NZHC 3881
UNDER Section 136 of the Trusts Act 2019 and Part 19 of the High Court Rules IN THE MATTER
of the estate of THOMAS ALAN HOLDER
BETWEEN
JASON ANDREW FOWLER
Applicant
AND
KUZYO HIZO
First Respondent
AND
JASON ANDREW FOWLER, SUSAN SANDFORD, GINA LYNLEY NUTH,
STEWART MUNRO, DARREN MICHAEL FOWLER and ANNALIESE RENEE
FOWLER as beneficiaries in the estate of THOMAS ALAN HOLDER
Second Respondents
Hearing: On the Papers Counsel:
V M Poland for Applicant
No appearance for Respondents
Judgment:
18 December 2024
JUDGMENT OF McQUEEN J
[1] This matter was called before me in the Judge’s Chambers List. I directed that the matter be determined on the papers.
[2] The applicant, Jason Fowler, is the administrator of the estate of Mr Thomas Holder. Mr Fowler has filed an application under s 136 of the Trusts Act
FOWLER v [2024] NZHC 3881 [18 December 2024]
2019 for an order authorising him to distribute the share in Mr Holder’s estate of Ms Kuzyo Hizo as if she does not exist, never existed or predeceased Mr Holder.
[3] As the location of Ms Hizo is unknown, Mr Fowler also seeks leave for the originating application to be determined on a without notice basis in accordance with r 7.23 of the High Court Rules 2016 (the Rules).
Background
[4] Mr Holder, died on or about 10 December 2022, leaving a will dated 8 July 2022 (the Will), for which probate was granted on 23 June 2023.
[5] The terms of the Will set out that Mr Holder’s nephew, Mr Fowler, is to be the administrator of his estate. The Will also directs, among other things, that the residue of Mr Holder’s estate is to be divided between seven beneficiaries, being the first and second respondents. The Will described the first respondent, Ms Hizo, as a friend, but gave no other information about her.
[6] Mr Fowler has filed an affidavit in support of the application. He explains that he did not know Ms Hizo, or of her. He has been unable to locate Ms Hizo to give her notice that she has a 25 per cent interest in Mr Holder’s estate, which is valued at approximately $180,000. The balance of the estate has been distributed in accordance with the Will.
[7] Mr Fowler in his affidavit outlines that he has gone through all of Mr Holder’s pen pal letters that go back to 2008, many of which are postcards to him with Japanese–sounding names. Mr Fowler says that it looks as though Mr Holder had about 10 or so pen pals or friends that he wrote to but none of them have the name Kuzyo Hizo. Mr Fowler says that there is nothing even slightly similar and the last two people to write to him were back in 2019 and 2020. Mr Fowler also says that he arranged to have all of Mr Holder’s mail rerouted to him when Mr Holder went to hospital in June 2022 and that he has not received any mail from anyone other than a few bills and bank statements early on.
[8] Mr Fowler made other attempts to locate Ms Hizo, including contacting Public Trust (who prepared Mr Holder’s will) and searching Facebook and Google, but to no avail.
[9] Having not had any success himself in his search, and having received legal advice, Mr Fowler engaged Dr Francine Tyler to try and find Ms Hizo. An affidavit from Dr Francine Tyler describes her qualifications and the work she has done to locate Ms Hizo.
[10] Dr Tyler is a director of Genealogy Investigations Ltd, a genealogy research company which specialises in helping executors and administrators of deceased estates identify and locate beneficiaries. Dr Tyler is well qualified to provide such help. She holds a PhD from Massey University which involved researching news reporting of historic New Zealand crime together with a Master of Arts in journalism. She has worked extensively as a lecturer in journalism and as a journalist, primarily in court and crime reporting. She has also been actively involved in genealogy research for 23 years. Dr Tyler explains:
The skills developed within these professions combined with experience in genealogy have proved ideal for the work Genealogy Investigations is involved in. Our service provides an alternative to the traditional private investigator model. We use only publicly available information combined with personal contact with extended family, friends, as well as social media and genealogy resources.
[11] Dr Tyler describes the information provided to her about Mr Holder by counsel for Mr Fowler, Ms Poland, including that Ms Hizo was not known by any of Mr Holder’s family or friends, and that he had no children. Ms Poland also provided certain material to Dr Tyler, including a list of names of people mentioned in letters found in Mr Holder’s house, copies of relevant pages from Mr Holder’s address book relating to his pen pals in Japan, Taiwan, China, South Korea and the Philippines, and copies of two other communications from Japan.
[12]In general (and non-exhaustive) terms, the efforts made by Dr Tyler involve:
(a)Contact with tertiary education providers in the Canterbury area to see if they could search their databases to locate any record in relation to
Kuzyo Hizo or similar names;
(b)Contact with Radius Healthcare St Helena’s Rest Home in Christchurch (where Mr Holder was resident before his death) to ascertain whether any caregivers might have been named Kuzyo Hizo or something similar or whether Mr Holder might have spoken to a caregiver about Ms Hizo;
(c)A search of the New Zealand Nursing Council’s register of nurses in relation to Kuzyo Hizo or similar names;
(d)Contact with the New Zealand Public Trust, Christchurch office, where Mr Holder’s will was prepared. This contact included Public Trust contacting the individual who had visited Mr Holder to record information for the Will. That individual, Mr Hocking, advised that Mr Holder had described Ms Hizo as a long-term female friend who lived in Japan. No other information could be found by the Public Trust;
(e)Searches on LinkedIn, Facebook, Line, X (Twitter), Instagram, and TikTok (having ascertained from the German-based statistics gathering organisation Statista, that these are the five most popular social media platforms in Japan) in relation to Kuzyo Hizo or similar names;
(f)An attempt to search the Japanese White Pages Directory (to discover it is no longer published as a residential database);
(g)An attempt to search the Japanese Land Registry and Companies Office (but this is only searchable by address, which is not available for Ms Hizo);
(h)A search of the Japanese collection of records on Utah-based FamilySearch.org in relation to Kuzyo Hizo or similar names;
(i)A search of family history records on genealogy website Ancestory.com in relation to Kuzyo Hizo or similar names;
(j)A search of the Christchurch electoral rolls for 2020, 2022 and 2024, the period covering two years either side of when Mr Holder made the Will, in relation to Kuzyo Hizo or similar names;
(k)A search of the New Zealand Online Property Register and New Zealand Companies Office for names similar to Kuzyo Hizo;
(l)An inquiry of the Japanese Society of Canterbury asking if they could make enquiries of their members to see if any of them had any information in relation to Kuzyo Hizo or someone of a similar name;
(m)Attempts to search Japanese government and municipality websites to determine if a publicly available register of deaths is available—further (unavailable) information was required to obtain access to the relevant Japanese records;
(n)Contact with the Japanese Embassy in Wellington, who advised they could not help given the very limited information available (and noting that the name Kuzyo Hizo was potentially incorrect or a partial name); and
(o)Contact with the second beneficiaries and further enquiries through other friends of Mr Holder that they mentioned.
[13] Dr Tyler explains that she would normally approach New Zealand Customs and Immigration to ask if they could help with entry and exit dates for a person missing overseas but in this case she felt there was not enough information about Ms Hizo to pursue this cause of action, particularly given the uncertainty over the spelling of her name and the almost complete lack of any verified information about her other than the Will and the recollections of Mr Holder’s friends. Dr Tyler concludes that she considers that Genealogy Investigations Ltd has taken every reasonable step that it can to try to locate Ms Hizo, without any success. Dr Tyler’s last enquiry was made on 18 April 2024.
[14] Mr Fowler says that no one claiming to be Ms Hizo, or knowing where she is, or how to contact her, or if she is even still alive, has since come to his attention. Mr Fowler says he does not believe she will ever be found and that in the circumstances Mr Holder would want her share divided between the other beneficiaries, as provided for in cl 6.9 of the Will. Clause 6.9 of the Will states:
If the trusts of any share in the residue fail, and there is no alternative beneficiary expressly provided for in my will, then the failed share will be divided and added to the other shares in the same portion which those shares bear to each other.
[15] Each of the other beneficiaries of the estate has filed an affidavit confirming that they consent to the application.
The application
[16] Mr Fowler therefore applies to the Court for orders to redistribute Ms Hizo’s share of the estate, on a without notice basis to Ms Hizo.
[17] Ms Poland has filed a memorandum in support of the application. Ms Poland submits that the requirements under s 136 of the Trusts Act have been met and the orders may be made. She notes that by including cl 6.9 in the Will, Mr Holder did not intend for Ms Hizo’s share in the estate to be transferred to the Crown as non- distributable trust property under s 149 of the Trusts Act. Ms Poland seeks the costs of the application against Ms Hizo’s share of the estate before redistribution, invoking cl 9.1 of the Will.
[18] Notwithstanding the second respondents’ consent to the application, Mr Fowler also sought an order that the second respondents be served and have the formal opportunity to appear in this proceeding if they wished to do so. Such directions were made on 6 December 2024. An affidavit from Ms Sagar confirms that service was effected and the second respondents have advised that none of them wished to be heard on the application or intended to appear when the matter was called.
Legal principles
[19]Section 136 of the Trusts Act provides:
(1)The court may, on application by a trustee, make an order authorising the trustee to distribute trust property—
(a)as if a potential beneficiary or a class of potential beneficiaries does not exist or never existed or has died before a date or an event specified; and
(b)if, because of the order, it is not possible or practicable to determine whether any condition or requirement affecting a beneficial interest in the property or any part of it has been complied with or fulfilled, as if that condition or requirement had been or had not been complied with or fulfilled.
(2)The court may make an order only if it is satisfied that—
(a)reasonable measures have been taken to bring to the notice of the potential beneficiary or beneficiaries their potential beneficial interest or interests; and
(b)at least 60 days have passed since the last of those measures was taken; and
(c)no potential beneficiary with respect to whom an order is sought has come to the attention of the trustee as a result of those measures, or the claim of any such beneficiary may be disregarded in the circumstances.
[20] Under the Trusts Act, the trustee is only required to undertake “reasonable measures” to inform the potential beneficiary of their interest in the estate. The size of the estate affects what constitutes an appropriate inquiry.1 Reasonable measures need not be exhaustive.2 In Hodgson v Hodgson, the inquiries undertaken that were held to meet the test of “reasonable measures” included an active search targeting social media, official databases, government departments, and friends and family.3
[21] A trustee who incurs costs in respect of inquiries made to ascertain the existence and identity of beneficiaries is entitled to pay the expense directly from the trust property or to be reimbursed from it.4
[22] Rule 7.23 of the Rules permits an application to be made on a without notice basis where one or more specified grounds are established, including where requiring
1 Tyson v Beaver [2024] NZHC 278 at [11] referencing Re Holland [2019] NZHC 1146 at [13]; and
Re Doak [2022] NZHC 3111 at [10].
2 Hodgson v Hodgson [2023] NZHC 2025 at [18].
3 At [18] cited by Tyson v Beaver, above n 1, at [13]; and Re Wilson [2024] NZHC 2015 at [11].
4 Trusts Act 2019, s 81.
an applicant to proceed on notice would cause undue delay or prejudice to the applicant and/or the interests of justice require the application to be determined without serving notice of the application.
Discussion
[23] Mr Fowler has taken reasonable measures to bring the interest in Mr Holder’s estate to the notice of the missing beneficiary, Ms Hizo, including through the extensive investigation undertaken by Dr Tyler. There has been an active search for Ms Hizo targeting social media, official databases and people who might be able to assist in ascertaining her whereabouts. These measures have not resulted in Ms Hizo coming to the attention of Mr Fowler. At least 60 days have passed since the last of Dr Tyler’s enquiries.
[24]Accordingly, I am satisfied that all the requirements in subs 136(2)(a), (b) and
(c) of the Trusts Act have been met and the application under s 136(1) for redistribution of Ms Hizo’s share of the estate should be granted.
[25] In the circumstances, this application cannot be served on Ms Hizo as the affected person. I consider that the application has properly been made without notice under r 7.23 of the Rules and that it can properly be determined on a without notice basis under r 7.46(4) of the Rules.
[26] Finally, I am satisfied the applicant is entitled under s 81 of the Trusts Act to pay the expenses incurred during the search for Ms Hizo from the first respondent’s share in the estate before distributing that share and claim the costs of this application as contemplated by cl 9.1 of the Will.
Orders
[27]Accordingly, I make orders as follows:
(a)This application may be determined without notice to Ms Hizo.
(b)That the trust of the 25 per cent share of the residue of the estate (Share)
of Thomas Holder held for Kuzyo Hizo pursuant to the Will (which has been granted probate) has failed.
(c)That Mr Fowler is authorised to distribute the Share held in trust for Kuzyo Hizo as if that beneficiary:
(i)does not exist;
(ii)never existed; or
(iii)predeceased Mr Holder, failing under cl 6.2 of the Will to obtain a vested interest.
(d)That Kuzyo Hizo’s failed Share be divided and added to the other shares in the same portion which those shares bear to each other, in accordance with cl 6.9 of the Will.
(e)That costs incurred in the search for Kuzyo Hizo and in obtaining this order be paid from Kuzyo Hizo’s Share before its distribution to the remaining beneficiaries, in accordance with indemnity cl 9.1 of the Will and s 81 of the Trusts Act.
McQueen J
Solicitors:
Smith and Partners, Auckland for Applicant
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