Public Trust

[2022] NZHC 3557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-882

[2022] NZHC 3557

IN THE MATTER

Of the Administration Act 1969 and the Wills Act 2007.

AND IN THE MATTER

Of an originating application by PUBLIC TRUST as the executor of the estate of JENNIFER ANN WU also known as JENNIFER ANN TIMMS for an order for the grant of probate in solemn form.

BETWEEN

PUBLIC TRUST

Applicants

Hearing:	24 November 2022
Counsel:	A K Finnie for Applicants
Judgment:	20 December 2022

JUDGMENT OF MUIR J

(Re: Application for grant of probate in solemn form)

This judgment was delivered by me on 20 December 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Public Trust, Christchurch Central

Re PUBLIC TRUST [2022] NZHC 3557 [20 December 2022]

Introduction

[1]    The late Jennifer Timms, also known as Jennifer Wu, of Auckland, was a generous and community-minded woman who chose to leave a significant part of her approximately $1.5 million estate to charity. But there is a competition between a will executed on 28 January 2009 and a draft signed, but not in accordance with the Wills Act 2007, in or about October 2017. The Public Trust applies, under r 27.6 of the High Court Rules 2016, for probate in solemn form in respect of the 2009 will.

[2]All relevant parties have been served. No notices of apposition have been filed.

[3]I am satisfied that the order sought by the Public Trust is appropriate.

Background

[4]    Ms Timms died on 17 November 2021. Her will of 28 January 2009 made various specific bequests to relatives and friends and provided for the residue of her estate to be divided into 29 shares, to be paid equally to a range of charities.

[5]    On 4 July 2016, she made enquires with the Public Trust in respect of a new will and, on 4 May 2017, gave instructions accordingly. Various attendances followed. A new draft was prepared involving significant changes to the previous will. Again, Ms Timms provided for a number of specific bequests to relatives. She made one such bequest to a charity also. She then gave her house and property at 26 Ruawai Road, Mount Wellington, to her trustee on trust to sell, with the proceeds of sale to be distributed in 14 equal parts to other named charities. In respect of the residue of her estate, she gave one-eleventh shares to various named friends.

[6]    On 21 July 2017, the draft will was sent to Ms Timms. Public Trust records indicate that it was returned sometime later, apparently executed but in an incorrect form. On 24 October 2017, Ms Kajal Keshvara, of the Public Trust, contacted Ms Timms, indicating that a further copy would be sent to her for resigning. The ledger entry reads:

Contact customer as she returned incorrectly signed will – resend will for her to sign again.

[7]    Public Trust records also contain a ledger entry from 10 November 2017 regarding a subsequent phone call from Ms Timms in which she foreshadowed further changes to the document. The relevant entry notes:

Received phone call from Jenny re changes to her Will, return call and answer her queries.

[8]    A further ledger entry, dated 24 January 2018, indicates that a Ms Hannah Dooley from the Public Trust left a phone message for Ms Timms to make contact with her to finalise her will.

[9]    Both Ms Keshvara and Ms Dooley have now left the Public Trust. Both have been approached but neither have any recollection of matters involving the deceased.

[10]   The incorrectly signed 2017 draft will cannot be located in either the original or copy form. The Public Trust advises that it has made extensive efforts in that respect but without success.

[11]   Ms Timms had no further direct communication with the Public Trust. However, on 20 October 2021, staff at the Public Trust’s Greenlane office received advice from nurses in Auckland Hospital’s palliative care ward that Ms Timms wished to be provided with a copy of her will. Due to lockdown restrictions, Public Trust staff were unable to obtain immediate access to their office. Special dispensation was granted on 22 October 2021. A copy of the 2009 will was at that point located and sent to Ms Timms. On 22 October 2022, a copy of the 2017 draft will, contained in a Word document, was emailed to Dr Jane Wilson of the Auckland District Health Board. Dr Wilson had made contact with the Public Trust on behalf of Ms Timms earlier that day.

[12]   In a second email from the Public Trust, dated 22 October 2021, Dr Wilson was advised that a medical certificate would be required regarding Ms Timms’ capacity to sign a new will at that time. Public Trust staff telephoned the Hospital on 26 October 2021 by way of follow up. On 17 November 2021, they were advised that Ms Timms had passed away.

[13]   Hospital and Hospice records in the last months of Ms Timms’ life, indicated concern on her part that she needed to execute a new will. The following are examples:

(a)“Jenny is worried about her will being out of date. She had plans to update this however, lockdown has delayed this.”

(b)“… [Ms Timms] has thought about some future plans i.e. updating her will. We have encouraged Jenny to write her thoughts/wishes down on paper.”

(c)“She also wants to change her will … She has a lawyer friend through church who could come into the hospital to re-write her will if needed.”

(d)“Jenny is also thinking about her will …”.

(e)“Jenny wishes to update her will (with support of her friend/lawyer).”

(f)“Jennifer has copies of her two outdated wills, in 2009 (signed) and 2017 (not signed) from Public Trust.”

(g)“She also wants to change her will.”

[14]   Various medical and hospice staff also recorded their own assessments, as follows:

(a)“… it was incredibly important to Jennifer to update her will”.

(b)“Jennifer wanted her will to be updated by her lawyer/friend from church …”.

(c)“… she in fact wished to have a new will altogether”.

(d)“… she had a lawyer friend through church that she said she would contact regarding writing a new will – she did not want to use the [P]ublic [T]rust as she thought they were too expensive”.

(e)“She has modified her will a few times … Since then, she has also changed her mind and has not clearly decided what she would like to write in her will.”

(f)“She feels that she is procrastinating all the time to finalise the will …”.

(g)“She would like to change it as some of her family passed away and her family involvement has been changed. She has got some ideas about how she would allocate her inheritance but it is not finalised yet.”

(h)“Spoke about talking to a lawyer about her will …”.

[15]   The reference to at least one of her family having passed away was accurate. Her brother, Mr Anthony Timms, who was an identified beneficiary in the 2017 draft will, had, in the interim, died.

The Public Trust’s position

[16]   The Public Trust acknowledges that the 2009 will does not reflect the testamentary intentions of Ms Timms at the time of her death. It notes, however, that it is a validly executed document in respect of which no issue of testamentary capacity arises. Mr Finnie correctly makes the point that the fact that Ms Timms wished to alter the 2009 will does not affect its validity.

[17]The Public Trust’s position in respect of the 2017 draft is that:

(a)there is compelling evidence it was never validly executed; and

(b)the document, in its incorrectly executed form, cannot now be found.

[18]   It says that it gave careful consideration to whether an application should be made under s 14 of the Wills Act 2017 to validate the 2017 draft. However, the medical records established to its satisfaction that Ms Timms’ testamentary intentions had further changed and that the 2017 draft was no longer reflective of them. Not only did

she understand that at least one of the beneficiaries under the 2017 draft had died, but she was clearly contemplating more substantial revisions or “a new will altogether”.

[19]   Against that background, the Public Trust submits that the appropriate course is to seek a grant of probate in solemn form for the 2009 will, rather than apply to validate the 2017 draft. It says that the fact Ms Timms took no steps to correctly execute the various new drafts of the 2017 will provided to her is clear evidence that her testamentary intentions had moved on from that point.

[20]   It notes that no formal steps have been taken by any party in opposition to its application in respect of the 2009 will.

Discussion

[21]   Having reviewed the application, the supporting evidence and submissions, and having heard from Mr Finnie in support, I am satisfied that a grant of probate in solemn form should be made in respect of the 2009 will. I accept it as properly executed, valid and dispositive unless subsequently revoked by a will valid in terms of the Wills Act or validated under s 14.

[22]   I accept as compelling the evidence that the 2017 draft will was never validly executed and accept also the Public  Trust’s  conclusion  that,  as  at  the  date  of  Ms Timms’ death, the 2017 draft did not “[express] the deceased person’s testamentary intentions”.1 On that basis, it is the 2009 will which must, in my view, prevail.

[23]   I make one final comment, however. Although no party served with the application has taken steps to oppose it, the Public Trust has received correspondence from four Bougainville Island women — Ms Mary Teona, Ms Domitilla Onabari,  Ms Eyal Doules and Ms Elizabeth Mark — whom the deceased befriended while working in Papua New Guinea approximately 10 years ago and who were identified as residuary beneficiaries in the 2017 draft will, but not in the 2009 will.

1      Wills Act 2007, s 14(2). The case is, in this respect, similar to White v White [2014] NZHC 865.

[24]   There is no suggestion in any of the medical notes that Ms Timms did not intend the four women concerned to participate in her estate.

[25]   It is clear from their letter that they each live in very basic circumstances, facing considerable difficulty in educating their children and in meeting the day-to- day challenges of their lives. Even modest provision may have life-changing consequences.

[26]   At the hearing, I suggested that, in these circumstances, the Public Trust may wish to write to the 29 charities specified as residuary beneficiaries in the 2009 will (each of which could be expected to receive something in the order of $45,000 to

$50,000 on current estimates) and ask whether they might be prepared to facilitate an ex gratia payment in favour of Ms Teona, Ms Onabari, Ms Doules and Ms Mark.

[27]   I commend consideration by the charities accordingly. I request the Public Trust provide them with a copy of this judgment and of the women’s letter.

Result

[28]   I grant probate in solemn form of the will of Jennifer Ann Wu, otherwise known as Jennifer Ann Timms, late of Auckland, retired, dated 28 January 2009.

[29]No issue of costs arises on the application.

Muir J