Livingston v Livingstone

[2013] NZHC 2606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003346 [2013] NZHC 2606

UNDER  Section 14 Wills Act 2007

IN THE MATTER             of the Estate of the late Alfons Franciscus

Antonius Minkhorst

BETWEEN  CAROL MARIE LIVINGSTONE, IVAN ERCEG and PATRICIA ROBYN MINKHORST, trustees and executors of the intended Will of the late Alfons Franciscus Antonius Minkhorst (the deceased)

Plaintiffs

ANDCAROL MARIE LIVINGSTONE, IVAN ERCEG and PATRICIA ROBYN MINKHORST, trustees and executors of the last executed Will of the deceased) Defendants

Hearing:                   7 October 2013

Appearances:           D Watson for Plaintiffs

Judgment:                7 October 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Gibbs Mills Livingstone, Auckland

Copy to:            D Watson, Auckland

LIVINGSTONE & ORS v LIVINGSTONE & ORS [2013] NZHC 2606 [7 October 2013]

Introduction

[1]      The plaintiffs seek orders validating an intended Will of the deceased Alfons

Franciscus Antonius Minkhorst.

Background

[2]      By way of background the plaintiffs are the trustees and executors of the intended Will, which was prepared in Auckland on or about 15 March 2013 by the deceased’s solicitor Ms Livingstone.   The defendants are the named trustees and executors of the last executed Will of the deceased dated 3 February 2010.

[3]      Directions as to service were obtained.  The proceedings have been served on all parties potentially affected, advantageously and disadvantageously, by the orders sought.

[4]      To put the matter in context it is necessary to refer to the background in a little more detail.

[5]      In his Will of 3 February 2010 the deceased provided certain specific gifts of personal items and chattels to Ms Judith Ann Gray (Judith).  The remainder of his furniture and other articles of household use were bequeathed to his two daughters Patricia and Jocelyn.  The deceased provided in that Will that the residue was to be held in trust and, after payment of the usual expenses, his residual estate was to be divided as to one part to Judith, one part to Patricia and one to part to Jocelyn.  In the case of Patricia and Jocelyn in the event of their pre-deceasing the deceased, their share in the estate was to go to their children.   The estate is worth approximately

$600,000.  In round figures, if the 2010 Will had been admitted to probate Judith, Patricia and Jocelyn would each have received around $200,000 each.

[6]      The intended Will, (the circumstances of how it came to be prepared will be referred to shortly), contained the following key provisions:

The plaintiffs were again appointed trustees and executors.

A specific bequest of $50,000 was made to Judith.

The residue was to be held on trust and, after payment of the usual funeral expenses, was to be divided as to one part to Patricia and one part to Jocelyn. Again, in the event of their pre-deceasing the deceased the children were to

take their mothers’ share.

[7]     The practical position is that, on the assumption the estate is worth approximately $600,000 validation of the intended Will would see Judith worse off financially to the extent of about $150,000 with Patricia and Jocelyn better off by around $75,000 each.

[8]      Against that background Judith, Patricia and Jocelyn were directed to be served with the proceedings.   Not surprisingly Patricia and Jocelyn consent to the Court validating the intended Will.  Judith has been served with the proceedings.  In addition to serving Judith with the proceedings the plaintiff’s solicitors have also corresponded with Judith.  Judith has responded from time to time by way of email. The plaintiffs have properly, through their affidavits, put those communications to and from Judith before the Court.

[9]     This afternoon Ms Watson also presented to the Court the most recent communication from Judith, apparently in response to a notice of today’s hearing date.  In that communication Judith has requested that that email and the other letters she had sent be read out to the Judge.  She then says:

However, I will not do anything else about the first will.   Let it be, and I hope that Patricia will be happy with her extra money.  I just want Patricia and Jocelyn to realise that without me, and my support and encouragement their Father may have not lived as long as he did.

[10]     I have had the opportunity to read and consider that communication and the earlier communications on behalf of Judith.  I am satisfied that she is well aware of the application before the Court and the consequences of it to her.

Decision

[11]     I return to the legal merits of the application before the Court.  The deceased, although elderly, was in good health until he suffered a stroke on 19 March 2013. He was admitted to Middlemore Hospital and, although apparently in good spirits and showing signs of recovery, died of a heart attack on 29 March 2013.

[12]     Coincidentally, shortly before the stroke on 19 March 2013, the deceased had contacted his solicitor, Ms Livingstone, about 15 March 2013.   On that day the deceased telephoned Ms Livingstone and asked her to prepare a new Will for him. She deposes that he instructed her he wanted to make the following changes:

(a)       to remove all specific gifts of chattels in the Will.  He explained that

Patricia and Jocelyn would sort out that issue amongst themselves; (b)         he wanted to reduce the amount to be paid to Judith to $50,000;  and (c) he wished to leave the residue to Patricia and Jocelyn jointly.

[13]     Ms Livingstone has confirmed that she has had no doubt that the deceased’s instructions were clear.   He expressed no wish to change anything else about his Will.   Ms Livingstone recorded the instructions by way of file note which he has attached to her affidavit.  The file note is consistent with her evidence.  Following the telephone call from the deceased Ms Livingstone prepared the intended Will. She has annexed a copy of the intended Will, which is consistent with and matches the instructions the deceased gave her on 15 March 2013.

[14]     Unfortunately Ms Livingstone was not aware the deceased had suffered a stroke.   She only learnt of the stroke and his death on 3 April 2013 when she received a telephone message advising that Patricia had phoned to say the deceased had passed away on 29 March 2013.

[15]     I  note  that,  in  her  file  note  relating  to  the  preparation  of  the  Will,  Ms

Livingstone had recorded:

Alfons said no hurry – just whenever.

For that reason the Will which she had prepared for the deceased remained unexecuted at the date of his death.

[16]     Sections 11 and 14 of the Wills Act 2007 (the Act) are engaged. The intended Will document appears to be a will and certainly appears to have been intended by the deceased to have been a will.   It was prepared or came into existence in New Zealand.  That much is clear.  It does not comply with s 11 of the Act.  Specifically it does not comply with the requirement that it must be signed and witnessed.  It was neither signed nor witnessed.

[17]     In determining whether a document which appears to be a will but does not comply with s 11 should be declared valid, the Court may consider the document, the evidence on the completion of the document, the evidence of the deceased’s testamentary intentions and evidence of any statements by made the deceased.

[18]     Relating those considerations to the present case I accept the submission made by Ms Watson that the document itself is clearly in the form of a will.  It was intended  to  be  the  deceased’s  last  Will.    That  is  borne  out  by  the  instructions provided by the deceased to Ms Livingstone.  Those instructions also provide good evidence as to the deceased’s testamentary intentions as at 15 March 2013 which I infer remained his position and intention as at the date of his death.  It appears there was no direct contact between the deceased and Judith between 15 March and the date of his death which would have led to any change in those intentions.

[19]     Further, in relation to any statements by the deceased, in addition to the evidence of Ms Livingstone as to the deceased’s intention to change the Will and his clear directions to her there is also the evidence of Patricia that one day she visited the deceased in the hospital (a couple of days before he died) he told her that he was worried because he had given instructions to his solicitor to prepare a new Will but had not signed it yet.   He was anxious that should something happen to him in hospital he would not be able to sign it.  Patricia says that she asked him if he had made his intentions clear to his solicitor.  The deceased replied “Yes”.  She then told him he should not worry, so long as he had made his intentions clear because she did

not want to worry him further.  She did not ask him anything about what was in his

Will as that was not the sort of thing they had ever talked about.

[20]     Having  regard  to  that  evidence  the  Court  is  satisfied  that  the  document presented to the Court by Ms Livingstone, which she prepared on the deceased’s instructions shortly before his death, expresses his testamentary intentions.

[21]     Applications such as these have been considered in a number of cases.  I refer to the case of Gladwin v Public Trust1  where a testator gave instructions to her solicitors to prepare a new will.  The will was prepared and sent to her for execution but she died before signing it.   Woolford J reviewed the previous decision in Re Estate of Hickford (deceased) noting that in that case the Judge had observed the failure to make an appointment to sign a will might be consistent with any one of three broad possibilities:2

(a) That he had changed his mind about making a will;

(b) That he overlooked or forgot about signing the will; or

(c) That he did not think that he needed to do anything further.

[22]     With respect to those observations by MacKenzie J, Woolford J considered that there was another possibility, namely, rather than overlooking or forgetting to sign a will, a person may intend to do so but just never get around to it before his or her death. That is the position in the present case.3  As in Gladwin v Public Trust the deceased had, while in hospital and shortly prior to his death, confirmed his intention as to the disposition of his estate in accordance with the intended Will.

Conclusion/result

[23]     For those reasons the orders sought are appropriate.  There will be an order in terms  of  the  draft  submitted  validating  the  intended  Will  being  the  document

attached to the draft order pursuant to s 14 of the Wills Act 2007.

Venning J

1      Gladwin v Public Trust [2011] 3 NZLR 566.

2      Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009 at [9].

3      Gladwin v Public Trust, at [22].