Public Trust v Baker
[2025] NZHC 661
•26 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-000027 [2025] NZHC 661
UNDER Section 14 of the Wills Act 2007 IN THE MATTER
of an application to validate a Draft Will of the late WILLIAM THOMAS BAKER
BETWEEN
PUBLIC TRUST
Applicant
AND
THOMAS TUI BAKER
First Respondent
LILLIAN KATIKA RANGIWHEREA
Second Respondent
REX IAN BAKER
Third Respondent
NATALIE ROSE BAKER
Fourth Respondent
GEORGIA MAY BAKER
Fifth Respondent
Hearing: 26 March 2025 Appearances:
G M Cairns for Applicant (by VMR)
Judgment:
26 March 2025
JUDGMENT OF VENNING J
This judgment was delivered by me on 26 March 2025 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Thomas Dewar Sziranyi Letts, Lower Hutt
PUBLIC TRUST v THOMAS TUI BAKER [2025] NZHC 661 [26 March 2025]
[1] William Thomas Baker (Mr Baker) died on 28 May 2024. Mr Baker left three children and two grandchildren who were beneficiaries under a will dated 23 February 2021. The will also appointed Public Trust as executor and trustee.
[2] Mr Baker’s children are Thomas Tui Baker, Lillian Katika Rangiwherea and Rex Ian Baker. The two grandchildren named in his will were Natalie Rose Baker and Georgia May Baker. On 14 May 2024, Mr Baker provided updated will instructions to Lavenia Mudunaivalu, a trustee employed by Public Trust. Mr Baker met with Ms Mudunaivalu to discuss his instructions and confirmed that he wanted to make changes to his will to change the shares the residuary beneficiaries were to receive and to change the provision for his grandchildren.
[3] Ms Mudunaivalu prepared a new will for Mr Baker in accordance with those instructions (with one omission). Unfortunately, before Mr Baker could execute the new will, he suffered a stroke on 19 May 2024.
[4] Although Mr Baker was assessed the day before seeing Ms Mudunaivalu as competent to make a will, when Public Trust attended Mr Baker after he sustained the stroke on 19 May 2024, they were unable to effectively communicate with him. He died on 28 May 2024.
[5] After discussion with Mr Cairns, he confirmed Public Trust now seeks to validate two documents as Mr Baker’s will under the provisions of the Wills Act 2007.
[6] Under Mr Baker’s first will his eldest son, Thomas, received 70 per cent of his estate. His daughter Lillian received 20 per cent, and his son Rex five per cent. His two grandchildren Natalie and Georgia received between them five per cent.
[7] The interested beneficiaries from the first will have all been served with the proceedings and have confirmed they consent to the current application, including the effective validation of the two documents.
[8] It is necessary for Public Trust to seek to validate two documents as the draft will prepared by Ms Mudunaivalu omitted to include a provision which Mr Baker had
set out in his initial handwritten instructions he discussed with Ms Mudunaivalu on 14 May 2024. Those instructions in full were:
Adjustment to Will
Thomas Tui to have 50% as reward for his support over years and financial help.
Lillian Katika 30% for leaving her home + job in Melbourne to look after me in my later years.
Between them buy out the other 20% from brother Rex Ian based on Rateable Value plus 10% for tools etc.
[9] The draft will Ms Mudunaivalu prepared following her discussion with Mr Baker altered the ultimate distribution of the estate, increasing the shares for Lillian and Rex but removing the provision for Natalie and Georgia unless they took in the event of their parent predeceasing them. However, it did not address the buy out option or the tools.
[10]The application is made under s 14 of the Wills Act:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3)The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[11] Document is defined as: “Any material on which there is writing”. Several cases have confirmed that more than one document may be read together as the deceased’s will.1
[12] The documents appear to be a will. The document prepared by the Public Trust is plain on its face as being a will and the document prepared by Mr Baker himself refers to an “Adjustment to Will”. Both documents came into existence in New Zealand. The documents do not comply with s 11 as they were not executed by Mr Baker nor witnessed in accordance with the provisions of s 14.
[13] The documents themselves are relatively clear although Mr Baker’s handwritten notice is potentially ambiguous. The ambiguity is however clarified by the evidence of Ms Mudunaivalu in her affidavit. She was able to confirm that Mr Baker intended that Thomas and Lillian would be able to buy out Rex’s 20 per cent share in the family residence at Collett Road (which is the major asset in the estate) in the event that Rex did not want to retain a minority interest in it but the others did wish to retain the property. Otherwise the property could simply be sold and the proceeds distributed in accordance with the shares under the will.
[14] As to the reference to tools, Ms Mudunaivalu confirmed that the tools were all located in Mr Baker’s tools room at his property and they were to be valued if Rex wanted to purchase them.
[15] Given that Ms Mudunaivalu met with Mr Baker a matter of days before his fatal stroke and weeks before his death, it is unlikely he would have altered his testamentary intention, particularly given the reasons expressed by him for the dispositions, namely the care and assistance provided him by Thomas and Lillian. His reasoning for making the adjustments to his previous will were not capricious and would have remained current. Having regard to Ms Mudunaivalu’s evidence of Mr Baker’s testamentary intentions and his statements as to his reasons for the changes, the Court is satisfied that it would be in the interests of justice to validate the documents as Mr Baker’s last will.
1 Winterburn v Wilson [2016] NZHC 1422; Re Gibson [2021] NZHC 3256; Broadbent v Broadbent-Matete [2024] NZHC 3673.
[16] Although not a determinative factor, the Court is also reinforced in its decision in this case by the responsible attitude taken by the various beneficiaries: the children and grandchildren. All of them consent to the proposed validation.
Result
[17] For those reasons there will be an order declaring the documents marked A and B and referred to in the affidavit of Lavenia Mudunaivalu as clarified at paras 10 and 11 of Ms Mudunaivalu’s affidavit sworn 20 December 2024 to be the last will of the deceased (the will).
[18] The applicant also seeks an additional order that probate be granted in common form. While generally a separate application would be required under Part 27 of the High Court Rules 2016 requiring proof of death and an undertaking by the executor to faithfully execute the will, in the circumstances of this case the Court is prepared to deal with the matter on this application. Public Trust is the executor and trustee and can be relied on faithfully to execute the will and the evidence before the Court confirms the death of the deceased. Also, given the attitude of all the parties potentially affected and the modest value of the estate it is appropriate to make that order.
[19] I make an additional order granting probate in common form over the will (as defined).
Costs
[20]Costs on the application to be paid out of the estate.
Venning J
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