Public Trust v Capper

[2012] NZHC 2864

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-000732 [2012] NZHC 2864

IN THE MATTER OF     section 14 of the Wills Act 2007

AND

IN THE MATTER OF     the estate of PHILLIP HENRY CAPPER of

Wellington, Self-Employed, Deceased

BETWEEN  PUBLIC TRUST as executor of the last will of PHILLIP HENRY CAPPER Plaintiff

ANDJOHN ELIOT CAPPER First Defendant

ANDDAIRN MARKELL Second Defendant

ANDDEBORAH MARY JOWITT and MARY WHALEY as trustees of the F JARVIS TRUST

Third Defendants

ANDDEBORAH MARY JOWITT as trustee of the PHILLIP CAPPER TRUST

Fourth Defendant

Hearing:         31 October 2012

Counsel:         G F Kelly for Plaintiff

C D Batt for First and Second Defendants
J A Langford for Third and Fourth Defendants

Judgment:      31 October 2012

ORAL JUDGMENT OF MACKENZIE J

PUBLIC TRUST V CAPPER HC WN CIV-2012-485-000732 [31 October 2012]

[1]      This proceeding is an application under s 14 of the Wills Act 2007 for an order declaring a document valid as the deceased’s last will.  The application was made by Public Trust, the executor named in both the last valid will made in January

2009 (the 2009 will) and in the document sought to be validated, a draft but unsigned will prepared in July 2011 (the 2011 draft).

[2]      The proceeding was served on all persons who would be affected by the differences in the dispositions under the 2009 will and the 2011 draft.  These persons fall broadly into two categories.  First, there are the first and second defendants, the two sons of the deceased, John and Dairn.  They would receive a greater entitlement under the 2011 draft than under the 2009 will.  Secondly, there are the family of the late wife of the deceased, represented by the third defendant.   Their entitlement would be greater under the 2009 will.

[3]      The  parties  have  been  able  to  resolve  their  differences,  and  to  reach  a settlement of the proceedings.  Their agreement came shortly before the scheduled hearing of this proceeding.   I am sure that a settlement is the most satisfactory outcome for the parties.   Litigation over estates can leave long lasting scars on family relationships.  I congratulate the parties on the settlement they have achieved.

[4]      The deed to give effect to the settlement which has been agreed proceeds on the basis that there will be an order validating the 2011 draft.  This is not, however, a case where the Court may simply make a consent order to that effect.   Before the Court can make such an order, it must be satisfied that the preconditions in s 14 of the Act are met.

[5]      When the case was first called on Monday 29 October, counsel advised that a settlement had been agreed, but that a deed to give effect to that had still to be signed.  Counsel indicated that the deed was premised on the basis that there would be an order validating the 2011 draft.  I advised counsel that I would need to consider the affidavit evidence to satisfy myself that an order was appropriate.   Mr Kelly helpfully made available to me the submissions he had prepared, for presentation if the matter had proceeded to a defended hearing.  I have reviewed the evidence.  I am satisfied that an order is appropriate.  I give my reasons for that conclusion.  I do so

relatively briefly, bearing in mind that the conclusion I have reached is consistent with the basis on which the settlement has been agreed.

[6]      The 2011 draft was never signed.   Two preconditions of the making of an order under s 14 are that the document concerned appears to be a will and does not comply with s 11 of the Act.  It is clear from the authorities that a document which is in the form usual for a will may appear to be a will notwithstanding that it is unsigned.  The non-compliance with s 11 may extend to a total failure to have the

document signed and witnessed as required.[1]

[1] Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11]; Re Hickford HC Napier CIV-2009-441-

[7]      The 2011 draft was prepared by Public Trust and e-mailed to the deceased on

14 July 2011  by  Mr Murfitt,  a  senior  relationship  adviser  at  Public  Trust  in Wellington.   The essential question, on the present application, is whether the evidence is sufficient to satisfy the Court that the 2011 draft expresses the deceased’s testamentary intentions.

[8]      The deceased (Phillip) had been married to Felicity Anne Jarvis (Felicity). Felicity had  a daughter  from  a previous  marriage,  Cathy,  who had  a  disability. Phillip and Felicity each made a will in January 2009.   Both wills contained substantially similar provisions for the disposition of the residue of their respective estates, after certain specific bequests.   Each will gave the residuary estate to the surviving spouse, with a gift over in the event of non-survival.  The gift over was of a  half  share  to  each  of  two  family trusts,  one  established  by  Felicity  and  one established by Phillip.

[9]      Felicity died on 7 July 2010.  Phillip succeeded to the residue of her estate. In  February 2011  Phillip  instructed  Public  Trustee  to  change  his  will.    Those instructions provided for his residuary estate to be divided into three:   a one third share to each of Phillip’s sons and a one third share to the trustees of the F A Jarvis Trust.   When a draft prepared in accordance with those instructions was sent to

Phillip for approval in June 2011, he requested a change, to the effect that the third

share of the residual estate to go to the F A Jarvis Trust should take effect only if Cathy was alive at the date of his death.   If she was not alive, then that one third share would pass to his sons.  A further draft, forwarded on 14 July 2011, which is the 2011 draft, reflected that change.   It was not signed before Phillip died on

2 November 2011.

[10]     One issue which was raised by the defendants is whether the wills made in January 2009 were mutual wills under s 30 of the Act.  The settlement between the parties makes it unnecessary for me to address that question.  I simply observe that the evidence adduced is not sufficient to establish the existence of promises under s 30(1)(b).

[11]   The key question is, does the 2011 draft express Phillip’s testamentary intentions?  As I have indicated, I have reviewed the affidavit evidence.  John says that he and Phillip discussed the issue of Phillip’s provision for Cathy with some specificity around August 2011.  In the course of that discussion Phillip said to him that he had changed his will, so that the residue was to be divided into three equal parts.   John said that his father was considering adding a clause to ensure that Felicity’s siblings would not get any part of the third share that would go to the F A Jarvis Trust, after Cathy died.  John understood from Phillip that the provisions in the draft will were the status quo at that point.  The last time they spoke was when Phillip was in hospital three weeks before he died.  He went through the provisions and explained that the New Zealand based assets, which were in effect the residue, would be split three ways.   He did not mention the further change he had contemplated in August 2011 as to the exclusion of Felicity’s siblings in the event that Cathy died.

[12]     The most cogent evidence of Phillip’s testamentary intentions at the relevant time appears in an e-mail from him to Felicity’s sister Deborah dated 12 August 2011 where he said:

I will be modifying my will. At present 1/3rd of my residual estate is to go to the FA Jarvis Trust with the intention of Cathy being the beneficiary as administered by Deb as a trustee.   I will be modifying that so that any residue after Cathy’s death reverts to John and Dairn, which may require a different mechanism for managing it for Cathy’s benefit.  Felicity scenario-

planned the possibility of my falling out with her family after her death (she did warn me that family history and patterns made this more a probability than  a  possibility,  but  when  she  said  it  she  was  joking).     In  such circumstances she wanted to ensure that Cathy continues to benefit from her estate while she is alive, but for the residue to revert to my descendants thereafter.  This is why she left her estate to me without conditions.  I still haven’t figured out quite how to do that should I predecease Cathy, which is the probable sequence.

[13]     That e-mail describes the provisions of the 2011 draft, as if those provisions were presently operative.  The reference to one third of his residual estate to go to the F A Jarvis Trust is consistent with the terms of that draft.  The e-mail description is not consistent with the 2009 will.  Under that, one half of the residue was to go to the F A Jarvis Trust.  I am satisfied that, at the time he wrote that e-mail, Phillip must have had the understanding that the 2011 draft was effective, not the 2009 will.

[14]     The e-mail however also indicates that Phillip was contemplating a further change from that set out in the 2011 draft.  Under that document, the one third share was to go to the F A Jarvis Trust absolutely, subject only to Cathy surviving Phillip. It is clear from the e-mail that he wished to alter that, by providing that the share to go to the F A Jarvis Trust would do so only for Cathy’s life time, and would then revert to his sons.

[15]     The  question  for  me  is  whether  that  intention  to  change  what  Phillip understood to be the terms of his will means that the Court cannot be satisfied that the 2011 draft expresses Phillip’s testamentary intentions.  I do not think that it has that effect.   The e-mail indicates that Phillip’s understanding was that if he died without having made the change which he contemplated, then the one third interest would go to the F A Jarvis Trust absolutely, subject only to Cathy surviving him.  He must have understood that, had he died without that change being made, that would have been the position.   If his stated intention to change the position which the

2011 draft prescribed was held to mean that the 2011 draft did not express  his testamentary intentions, that would lead to the result that the 2009 will would be effective.  The position would not be as he understood it, as described in the e-mail, nor as it would be in the event that he had given effect to his stated intention to change.  There would be an incongruity in an outcome under which his intention to change the testamentary dispositions as he understood them to be resulted in the

restoration of testamentary dispositions which he understood to have been revoked. In those circumstances, I do not think that his professed intention to alter the disposition in the 2011 draft precludes the application of s 14.

[16]     There is also evidence from a friend of the family, Mr Green.  He describes a conversation with Phillip, in what I hold from the evidence must have been late July 2011.  Phillip spoke to him about revising his will and asked what he, Mr Green, thought of Public Trust as executors.  They had a discussion about that.  Mr Green’s evidence is that the discussion left him with the understanding that Phillip was revising his will, and had gone off having Public Trust as executor.  It left him in no doubt that Phillip was still sorting out what to do with his will.  He did not discuss the detail of the proposed disposition under the will.

[17]     I consider that Mr Green’s evidence is consistent with the e-mail which I have discussed.   That was sent about two weeks after the conversation.   Clearly, Phillip was considering a change to his will.   The conversation which Mr Green describes is consistent with Phillip having in mind a change to what he understood the position to be under the 2011 draft, which he had received from Public Trust not long before the conversation.   The conversation with Mr Green does not, in the context of the whole of the evidence, suggest that Phillip was in doubt as to whether he had adopted, or should adopt, the 2011 draft as his then testamentary intention.

[18]     For  these  reasons,  I  made  an  order  declaring  the  draft  will  prepared  in July 2011, which I have referred to as the 2011 draft, to be valid, and to be the deceased’s last will.

[19]     There will be no order as to costs.

Solicitors:           Greg Kelly Law Limited, Wellington, for Plaintiff

“A D MacKenzie J”

Tripe Matthews Feist, Wellington, for First and Second Defendants

Waley & Garnett, Auckland, for Third and Fourth Defendants

369, 13 August 2009 at [4];  Re Brown HC Auckland CIV-2010-404-6328, 13 October 2010;  Re
Brundall [2011] 3 NZLR 528 (HC); Re Fraser HC Napier CIV-2011-441-700, 20 December
2011;  Gladwin v Public Trust [2011] 3 NZLR 566 (HC); Re Murray [2012] 2 NZLR 546 (HC);
Re Rowell [2012] NZHC 1823.