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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Public Trust [2022] NZHC 3557
Case: [2022] NZHC 3557
Decision Date: 20 December 2022

CaseChat Overview and Summary

The case involves an application by the Public Trust, acting as the executor of the estate of Jennifer Ann Wu, also known as Jennifer Ann Timms, for an order granting probate in solemn form of a will dated 28 January 2009. There is a dispute between this will and a draft signed in October 2017 that does not comply with the Wills Act 2007. The matter was heard in the High Court of New Zealand at Auckland. The legal issues before the court included whether the 2009 will or the 2017 draft should be granted probate, and if the 2017 draft could be validated under section 14 of the Wills Act 2007. The court needed to determine the testamentary intentions of Ms Timms at the time of her death.

The court concluded that the 2009 will was validly executed and should be granted probate in solemn form. It found compelling evidence that the 2017 draft was never validly executed and did not reflect Ms Timms' testamentary intentions at the time of her death. The court accepted the Public Trust's argument that the medical records showed Ms Timms had further changed her testamentary intentions and was contemplating more substantial revisions or "a new will altogether". The court also noted that no formal steps had been taken by any party in opposition to the application for the 2009 will. Although four Bougainville Island women who were beneficiaries under the 2017 draft had written to the Public Trust, there was no suggestion in the medical notes that Ms Timms did not intend for them to participate in her estate. The court suggested that the Public Trust might wish to ask the charities specified as residuary beneficiaries in the 2009 will if they would be prepared to facilitate an ex gratia payment in favour of the four women.

The court granted probate in solemn form of the will of Jennifer Ann Wu, dated 28 January 2009. No issue of costs arose on the application.

Orders