Officer v Hunter

[2019] NZHC 3269

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2018-476-000061

[2019] NZHC 3269

IN THE MATTER OF

the estate of IRIS MAE OFFICER- HOLMES

BETWEEN

KENNETH CAMPBELL OFFICER

Applicant

AND

RICHARD MATENE HUNTER

First Respondent

AND

OTHERS

Second to Twenty Seventh Respondents

Hearing:	On the papers
Counsel:	J J S Shaw for the Applicant
Judgment:	12 December 2019

JUDGMENT OF NATION J

[1]                The applicant is the named executor and trustee of the will of the late Iris Mae Officer-Holmes (the deceased) pursuant to a will dated 8 December 2011.

[2]The estate of the deceased comprises:

(a)  a property located at 73A Allens Road, Ashburton;

(b)  certain cash or equivalent assets totalling approximately $13,000; and

(c)  personal property of Mrs Officer-Holmes of a nominal value.

[3]The deceased died on 23 May 2018.

OFFICER v HUNTER [2019] NZHC 3269 [12 December 2019]

[4]                Mrs Officer-Holmes had the following testamentary documents known to the applicant:

(a)  a will dated 30 May 2006 (the 2006 will);

(b)  an amendment to the 2006 will dated 12 September 2007;

(c)  an amendment to the 2006 will dated 12 September 2007 with handwritten amendments;

(d)  the 2011 will;

(e)  an unsigned amendment dated 13 November 2016; and

(f)  the amendment signed on 16 November 2016 (the amendment).

[5]                The applicant seeks a grant of probate solely of the 2011 will, excluding the amendment, on the grounds:

(a)  the amendment purports to be an amendment to the last will of Mrs Officer-Holmes but amends the 2006 will;

(b)  the 2011 will specifically revoked and replaced the 2006 will and the amendments dated 12 September 2007;

(c)  the amendment contains certain bequeaths that are uncertain and vague and cannot properly be complied with by the applicant;

(d)  the amendment nominates Neil Campbell Officer as a trustee with the applicant pursuant to the amendment however Neil Campbell Officer died on 2 May 2018;

(e)  the amendment does not make any significant changes with respect to the substantial asset of the estate, being the property or the proceeds of the property; and

(f)  that all parties potentially with an interest in the proceedings consent to probate being granted as to the 2011 will on that basis.

[6]In a minute of 26 June 2019, I directed:

[6]   To expedite matters, I direct:

(a)the applicant is to file, from an appropriate person, perhaps from the law firm that acted for the deceased, an affidavit as to the matters referred to in the statement of claim and annexing the documents which are referred to in the statement of claim. The affidavit should also describe, perhaps through the annexing of appropriate correspondence, how all those who have consented to the making of the orders sought were informed as to the issuing of these proceedings and the effect of what they would be consenting to

(b)counsel should also file a memorandum setting out:

(i)what people might have had an interest in the proceedings, either through their relationship with the deceased or as beneficiaries under any of the testamentary documents which are at issue in the proceedings;

(ii)why it would be appropriate to dispense with service of the proceedings on these people (presumably it may be appropriate to dispense with service of the proceedings on the basis that all those who are potentially affected have been made aware of what is being sought in these proceedings and consent to probate being granted of the 2011 will as sought);

(iii)the legislative provisions or case law which is relied on to allow the Court to grant probate of the 2011 will and to disregard the later amendment to the 2006 will;

(iv)an explanation to the Court as to why the granting of probate of the 2011 will does not disadvantage any person who would have taken under the 2006 will with the subsequent amendment if the 2006 will and amendment were to be given effect to.

[7]       The Court has now received an affidavit from the solicitor for the applicant. With that affidavit there is information explaining how those respondents who have signed consents to the orders sought were given notice of the claim that was being pursued. The Court has also now received copies of the various testamentary documents referred to in the claim.

[8]       There is no information expressly as to the children or grandchildren of the deceased who might have had a claim against her estate nor is there any explanation why such people do not have to be served with the proceedings.

[9]       There has also been no further explanation or submission as to the legal basis on which the Court should order that probate be granted in respect of the 2011 will other than by reference to the assertions made in the statement of claim.

[10]     Despite that, through reference to the various documents, the Court has been able to identify the information required to deal with the matter substantively so as to avoid further costs being charged to the estate.

[11]     The applicant is a brother of the deceased. In the 2011 will, he was appointed a trustee and executor along with another brother of the deceased, Neil Campbell Officer. In the statement of claim it is said Neil Campbell Officer died on 2 May 2018.

[12]     Gordon Charles Officer and Kenneth Campbell Officer were also appointed as executors and trustees in the deceased’s will of 30 May 2006. In her unsigned amendment dated 13 November 2016, the deceased refers to Gordon Charles Officer having died. Kenneth Campbell Officer, as applicant of the current proceedings and as the only surviving trustee under the 2006 will, thus has notice of the current proceedings. He consents to the making of the orders sought.

[13]     In the deceased’s will of 30 May 2006, the deceased makes a gift to her husband of $15,000. The 2006 will also left her husband a life interest in chattels and provided for him to have the use of the deceased’s home until his death or remarriage. It appears he has died and thus the deceased was not survived by a husband who would have a claim against her estate. The 2011 will makes no provision for him.

[14]     The 2006 will referred to the deceased’s son Gary Mervyn Wills and her two daughters Andrea Lesley Hunter and Tonee Janine Campbell Hurley. They are referred to in her will as being her three children. Andrea Lesley Hunter and Tonee Janine Campbell Hurley are named as respondents to these proceedings. They have signed consents to the orders sought in the statement of claim.

[15]     In the amendment document dated 12 September 2007, the deceased refers to her son having pre-deceased her on 11 November 2006. In that amendment document, the deceased left his share of her estate to be divided equally between four grandchildren. Those four grandchildren, Justine Mae Hunter, Kiri Lee Hunter, Guy

Matene Hunter and Kenneth Mervyn Wills, are each named as respondents in the proceedings and have signed consents to the orders sought. It thus appears all the deceased’s grandchildren are aware of the current proceedings and have consented to the orders sought.

[16]     I am thus satisfied the current proceedings have been brought to the notice of all those who, by reason of family relationships, would potentially have a claim against the estate of the deceased.

[17]     The 2006 will also left various gifts to certain named people: Richard Matene Hunter, Kevin John Hurley, St Pauls Presbyterian Church of Ashburton. They are named as respondents to the current proceedings and have signed consents in which they acknowledge being informed of the current proceedings and consent to the orders sought.

[18]     There are two amendments of 12 September 2007 by which the deceased made gifts of personal jewellery to a number of named people.

[19]     In the will of 8 December 2011, the deceased revoked all wills previously made by her.

[20]     In her will of 8 December 2011, the deceased appointed her brothers Kenneth Campbell Officer and Neil Campbell Officer executors and trustees. She gave to each of two sons-in-law $1,000 if at her death they were still married to the deceased’s daughters. There were identical legacies in her will of 30 May 2006. She gave $1,000 to St Pauls Presbyterian Church as she had in her 2006 will. The deceased gave to her two daughters all her jewellery clothing and personal items with a request but no obligation to distribute items in accordance with any wishes she might express before her death. She gave the residue in her estate to the trustees to realise, to pay debts, and to divide the residue into five equal parts, two parts for her daughter Andrea Lesley Hunter, two parts for her daughter Tonee Janine Campbell Hurley and one part for her grandson Kevin Mervyn Wills, the son of her deceased son. There were a number of specific provisions as to what would happen to those beneficiaries’ respective shares if any of them died before the deceased.

[21]     In a typed but unsigned amendment of 13 November 2016, the deceased prepared a document in which she appears to have assumed that her last operative will was the 2006 will. She referred to one of the persons appointed as trustee in the 2006 will, her brother Gordon Charles Officer, having died. In his place, the document indicated she wanted her brother Neil Campbell Officer to be a trustee along with Kenneth Campbell Officer. They were the people she had appointed as trustees in the 2011 will.

[22]     The document purposed to delete a number of provisions providing for legacies and the distribution of the residue in her estate. It referred to her wish to give a number of personal items to various people and listed a number of people with a request to her daughters to see that they were each given something meaningful or personal, concluding with the way in which the deceased in that document referred to her wish to see various personal items distributed amongst friends and relatives. It was a list consistent with the wishes she had expressed in her 2011 will as to how she wanted her two daughters to deal with her personal items.

[23]     An almost identical document was signed and witnessed on 16 November 2016. The names of one of the people who the deceased had asked her daughters to give “something meaningful to” was deleted. The later document expressed a wish as to how her silverware would be distributed.

[24]     All those named as potential beneficiaries of the gifts referred to in the signed document of 16 November 2016 have been named as respondents in these proceedings but have signed forms acknowledging they do not wish to take a formal role in the proceedings and consent to the claim being made by Kenneth Campbell Officer as trustee of the 2011 will.

[25]     In terms of the 2006 will, as amended, the residue in the deceased’s estate was to be divided into three parts, with each of her two daughters to receive one part and the remaining part which was to have been held for her son, in light of his having died before the deceased, to be divided equally between her four grandchildren. Those four grandchildren do not share equally in one-third of the residue under the 2011 will. I am satisfied they have been informed of the claim which is being made in the proceedings. They have indicated they do not wish to take any formal part in the

proceedings and consent to the orders sought and thus to the Court recognising the 2011 will as the last valid will of the deceased.

[26]     Against that background, I am satisfied that all those who could have a potential claim to the estate of the deceased are aware of the proceedings, have received a copy of the statement of claim, have indicated they do not wish to be formally involved in the proceedings and consent to the Court granting probate of the 2011 will.

[27]     I cannot find that either the unsigned amendment document dated 13 November 2016 or the document signed on 16 November 2016 is a valid testamentary disposition or that either document expresses the deceased’s testamentary intentions. The documents refer back to a will which the deceased had earlier revoked. The documents refer to the deceased’s wishes as to the gifting of chattels in terms which do not appear to impose any obligation on either the trustee or anyone else for chattels to be dealt with in a particular way. The 16 November 2016 amendment, together with the 2006 will would not provide for the distribution of the residue in the deceased’s estate.

[28]     I am therefore satisfied, and with the consent of all those who might potentially have a claim to the estate of the deceased, that the will of 8 December 2011 is the deceased’s last valid will.

Conclusion

[29]     I accordingly make an order dispensing with the need for the applicant to serve copies of the proceedings on any other party.

[30]     I make an order that the will of deceased dated 8 December 2011 is her last valid will. The applicant is now entitled to apply for probate of that will in common form.

[31]I make no order for costs. The applicant’s costs will be payable from the estate.

[32]     Leave is reserved to the applicant to seek any further directions or orders that may be required to give effect to this judgment.

Solicitors:
Argyle Welsh Finnigan, Ashburton.

This judgment was delivered by me on 12 December 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar / Deputy Registrar Date: 12 December 2019.