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…

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 Capper

Details

AGLC: Public Trust v Capper [2012] NZHC 2864
Case: [2012] NZHC 2864
Decision Date: 31 October 2012

CaseChat Overview and Summary

Public Trust applied to the High Court under section 14 of the Wills Act 2007 to have a draft will prepared in July 2011 declared as Phillip Capper's last will. The draft will was never signed, but the court was asked to validate it as Phillip's last will. The proceeding was served on all persons who would be affected by the differences in the dispositions under Phillip's 2009 will and the 2011 draft will. The first and second defendants, Phillip's sons, would receive a greater entitlement under the 2011 draft, while the family of Phillip's late wife would receive a greater entitlement under the 2009 will. The parties were able to resolve their differences and reach a settlement of the proceeding. The settlement was premised on the basis that there would be an order validating the 2011 draft.

The legal issues the court was required to decide were whether the 2011 draft was valid as Phillip's last will and whether the preconditions in section 14 of the Act were met. The court needed to consider whether the 2011 draft was a document that appeared to be a will, and whether it complied with section 11 of the Act. The court also needed to consider whether the evidence was sufficient to satisfy it that the 2011 draft expressed Phillip's testamentary intentions.

The court was satisfied that an order was appropriate to declare the 2011 draft will to be Phillip's last will. The court found that the 2011 draft appeared to be a will, despite being unsigned. The court also found that the evidence was sufficient to satisfy it that the 2011 draft expressed Phillip's testamentary intentions. The court noted that Phillip had contemplated a further change to the 2011 draft, but this did not preclude the application of section 14.

The court made an order declaring the draft will prepared in July 2011 to be Phillip's last will. There will be no order as to costs.

Orders