Lees, (dec'd) re HC Auckland CIV 2010-404-3834

[2010] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-3834

IN THE MATTER OF     THE ESTATE OF PETER MARTIN LEES (DECEASED)

Hearing:         (on the papers)

Counsel:         C J Ward for Applicants

Judgment:      26 July 2010

JUDGMENT OF HEATH J

This judgment was delivered by me on 26 July 2010 at 4.30pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

O’Brien Ward, PO Box 305-025, North Shore

LEES HC AK CIV 2010-404-3834  26 July 2010

Introduction

[1]      Peter Martin Lees died in India, on 18 January 2010.  At the time of his death he was ordinarily resident in New Zealand.   However, he also owned property in Thailand.

[2]      On  15  June  2010,  Mr Lees’  widow,  Somporn  Lees,  and  his  accountant, Wilfred Marley, applied without notice for an order granting probate of a Mr Lees’ Will of 7 November 2001 (the New Zealand Will) in their favour.

[3]      That application was dealt with by Registrar Parker on 29 June 2010.  The Registrar took the view that the Will had been revoked, by the terms of a subsequent Will that the deceased had made in Thailand on 2 February 2006 (the Thai Will). The Registrar considered that he must give full effect to the deceased’s statement, in the Thai Will, that “all former wills and codicils” were revoked.  On that basis, he declined the application for probate in respect of the New Zealand Will.

[4]      The named executors and trustees of the New Zealand Will apply to review the Registrar’s decision.[1]   They do so on the grounds that the Thai Will was intended to  deal  only  with  property  located  in  that  jurisdiction.    For  that  reason,  it  is contended that the will-maker did not intend to revoke his New Zealand Will; at least, insofar as it dealt with property situated in places other than Thailand.

Background

[1] High Court Rules, r 2.11.

[5]      The New Zealand Will does not refer specifically to the property to which it applied.   Had it stood alone, it would have applied to all property owned by the deceased at the date of his death.  The terms of the New Zealand Will require all property owned by the deceased at the date of his death to be settled on the trustees of the Peter and Somporn Lees Trust (the Trust).  The Trust was settled on the same day as the New Zealand Will was executed, 7 November 2001.

[6]      The revocation clause of the later Thai Will has been translated into English to read:

1.I  hereby  revoke  all  former  wills  and  codicils  made  by  me  and declare this to be my last Will and Testament for my property in Thailand.

Clause  4  of  the  Thai  Will  instructed  the  executor  of  that  Will  to  sell  the condominium units to which that Will applied and to transfer net proceeds to the Trust’s bank account in New Zealand.

[7]      On 16 May 2010, the executor of the Thai Will wrote to the solicitors for the named executors under the New Zealand Will, confirming that the Thai Will applied only to property in Thailand and did not, otherwise, supersede the terms of the New Zealand Will.

Analysis

[8]      Section 16 of the Wills Act 2007 deals with revocation.  Section 16(a) and

(b)(i) and (ii) provide:[2]

[2] These provisions apply to Wills made before 1 November 2007: s 40 Wills Act 2007.

16.  Revocation

A valid will, or part of a valid will, may be revoked, but only by one of the following means:

...

(a)      the will-maker makes a later valid will; or

(b)      the will-maker writes a document that –

(i)       makes clear his or her intention to revoke the will or the part; and

(ii)      complies with section 11; or

....

[9]      The Thai Will is a “later valid will”, for the purposes of s 16(a).  Therefore, if the revocation clause were interpreted to revoke all former testamentary documents,

the New Zealand Will would be revoked through the operation of s 16(a).  Counsel for the applicants placed emphasis on s 16(b).  However, as the Thai Will is a valid Will for s 16(a) purposes, the review application seems to turn on the interpretation that should be given to the revocation clause in the Thai Will.   In my view, the question  is  whether  the  Thai  will  revoked  the  New  Zealand  Will  only in  part; namely, in respect of specified property situated in Thailand.

[10]   It is open for a New Zealand Court to make an independent grant of administration in New  Zealand,  even though  a grant has been made in another country to administer property in that State.[3]    That is consistent with the view that two or more testamentary documents may be admitted to probate, provided that the will-maker intended their composite terms to govern the way in which his or her property should be disposed of on death.[4]

[3] Section 71(2) Administration Act 1969.

[4] See Lemage v Goodban (1865) 1 LR P&D 57 at 62-63, Townsend v Moore [1905] P 66 (CA) and Re Madsen (2003) 23 FRNZ 79 (HC). 

[11]     Where testamentary dispositions are recorded in two or more documents that deal with property in different countries, all documents may be admitted to probate, so that the aggregate of the will-maker’s property can be realised and distributed in accordance with  his  or  her  intentions.    In  Douglas-Menzies  v  Umphelby,[5]   Lord Robertson, for the Privy Council, said:

Whether a man leaves one testamentary writing or several testamentary writings, it is the aggregate or the net result that constitutes his will, or, in other words, the expression of his testamentary wishes.  The law, on a man’s death, finds out what are the instruments which express his last will.  If some extant  writing  be  revoked,  or  is  inconsistent  with  a  later  testamentary writing, it is discarded.  But all that survive this scrutiny form parts of the ultimate will or effective expression of his wishes about his estate.  In this sense it is inaccurate to speak of a man leaving two wills; he does leave, and can leave, but one will. ....

[5] Douglas-Menzies v Umphelby [1908] AC 224 (PC) at 233.

[12]     New Zealand authorities have held that a revocation clause must be given an interpretation that accords with the intention of the will-maker, whether by way of interpretation or with the assistance of extrinsic evidence.[6]

[6] Guardian Trust and Executors Co of NZ v Darroch [1973] 2 NZLR 143 (SC) at 146-147; applying the approach articulated in Re Phelan (Deceased) [1971] 3 All ER 1258 (PDA) at 1258. See also Re Hoff HC Auckland, M1831-sd99, 4 May 2000 at [13]-[15].

[13]     With respect to the Registrar, I consider that the present application falls squarely within those principles.  The Thai Will is clear in its intention to deal only with Thai property.[7]    The instruction in clause 4 of the Will to realise the Thai property and to distribute the proceeds of sale to the Trust’s bank account in New Zealand is consistent with the need to read the New Zealand and Thai Wills together.

[7] Clause 1 of the Thai Will set out at para [6] above.

[14]     In terms of the principle expressed in Douglas Menzies v Umphelby[8] this is a clear case in which the revocation clause should be interpreted as revoking the earlier New Zealand Will in part only; for the purpose of enabling property situated in Thailand to be realised by an executor appointed in that jurisdiction.[9]

Result

[8] Douglas Menzies v Umphelby [1908] AC 224 (PC).

[9] See s 16(a) Wills Act 2007.

[15]     I set aside the Registrar’s decision to refuse to grant probate and make an order granting probate of the New Zealand Will in favour of Somporn Lees and

Wilfred Marley.[10]

[10] High Court Rules, r 2.11(2).

P R Heath J

Delivered at 4.30pm on Monday 26 July 2010.