Public Trust v Bucknell - [2023] NZHC 1465

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-110

[2023] NZHC 1465

IN THE MATTER of the Estate of Gabrielle Ellen Balch

BETWEEN

PUBLIC TRUST

Applicant

AND

RUTH ELIZABETH BALCH BUCKNELL

First Respondent

AND

PUBLIC TRUST as administrator of the Estate of HELEN MAREE LYE

Second Respondent

AND

JILLIAN KAYE BALCH

Third Respondent

Hearing: On the papers

Judgment:

13 June 2023

JUDGMENT OF HARLAND J

Introduction

[1] This judgment concerns an application by the Public Trust for a grant of probate in solemn form. It concerns the estate of Gabrielle Balch (“Mrs Balch”) and, specifically, which of her two last known Wills should be admitted to probate. The Public Trust is the intended executor of Mrs Balch’s last two Wills.

PUBLIC TRUST v BUCKNELL [2023] NZHC 1465 [13 June 2023]

[2] There is also an application without notice for orders dispensing with service of the substantive application on the respondents as all have consented to it.1 I grant the application for orders dispensing with service.

[3]I now address the application for the grant of probate in solemn form.

Background

[4] Mrs Balch died on 10 August 2022 aged 94. At the time of her death, she was living in dementia level rest home care, where she had been since December 2017.

[5] The estimated value of her estate is $1,000,000.00, comprising of bank accounts and term deposits with ANZ, Westpac and BNZ banks, and a managed fund portfolio invested by the Public Trust.

[6] Mrs Balch’s last known Will is dated 24 February 2016 (“the 2016 Will”). Her previous known Will was dated 18 January 2005 (“the 2005 Will”). Both Wills:

(a)appoint the Public Trust as executor;

(b)leave the residue to her husband if he survived her by 30 days;

(c)contain further gifts of residue that leave an equal third share to each of her surviving children; and

(d)set out substitution clauses if any of the surviving children have pre- deceased her.

[7] The only point of difference between the two Wills is in one of the substitution clauses. In the 2005 Will, if Mrs Balch’s daughter Ruth had pre-deceased her, then Ruth’s children would share equally in her part of the estate. In comparison, in the 2016 Will, one of Ruth’s sons, Jesse Bucknell, had passed away and his name was replaced with Mrs Balch’s great-grandson, Carter Bucknell.

1 Affidavit of Richard Sam Hocking, sworn 10 March 2023, Exhibit 1.

[8] Mrs Balch’s husband pre-deceased her, and one of her children, Helen Lye, died on 18 December 2022. Because this was after Mrs Balch had died, Helen’s estate is entitled to receive her share. The Public Trust is the administrator of Helen’s estate and is a respondent alongside Mrs Balch’s two surviving children. Her three children survived her, therefore, the substitution clauses in both Wills are not invoked. However, the change outlined at [7] is a logical change to the 2016 Will.

[9] Because dementia was noted on the death…

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.

Continue reading Public Trust v Bucknell

Details

AGLC: Public Trust v Bucknell [2023] NZHC 1465
Case: [2023] NZHC 1465
Decision Date: 13 June 2023

CaseChat Overview and Summary

The High Court of New Zealand was tasked with determining which of two wills should be admitted to probate in the case of Public Trust v Bucknell. The deceased, Gabrielle Balch, left behind two wills, one dated 2005 and another dated 2016, both appointing the Public Trust as executor. The crux of the dispute lay in whether Balch had the requisite testamentary capacity when she executed the 2016 will, given that she had dementia at the time. The court was required to decide if the 2016 will was valid and should be admitted to probate, or if the earlier 2005 will was to be considered her last valid will.

The court considered the elements of testamentary capacity, which require a testator to be of sound mind, memory, and understanding. It was noted that Balch had dementia at the time of the 2016 will, which raised doubts about her capacity. An expert assessment indicated that Balch likely had mild to moderate dementia in 2016, and thus the presumption of testamentary capacity did not apply. Despite the Public Trust's assertion that Balch had the required capacity, the court found it more probable than not that she lacked the necessary mental faculties to execute the 2016 will. Consequently, the 2016 will was deemed invalid, and the 2005 will was admitted as Balch's last valid will.

The court also addressed the issue of costs, noting that it was reasonable for the Public Trust to raise the issue of testamentary capacity and that all costs incurred should be met from Balch's estate. The court made an order granting probate in solemn form for the 2005 will and directed that the costs of the proceeding be met from Balch's estate.

Orders