Public Trust v Fairbairn
[2023] NZHC 2605
•19 September 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-264
[2023] NZHC 2605
UNDER Section 14 of the Wills Act 2007 IN THE MATTER
of an application for probate in solemn form and validation of the Estate of BRUCE HENRY SULLIVAN
BETWEEN
PUBLIC TRUST
Plaintiff
AND
ALFRED STEPHEN FAIRBAIRN and RONALD ALFRED DOMINIC HARRIS
First Defendants
CARLY MAY JOHNSON
Second Defendant
Hearing: 14 September 2023 Appearances:
J J Pietras for Plaintiff
Judgment:
19 September 2023
JUDGMENT OF CHURCHMAN J
[1] On 14 July 2022, at the age of 80 years, Bruce Henry Sullivan (the Deceased) passed away at the Winara Care Home in Waikanae.
[2] The Deceased had never married and had no children. He had three siblings but had not had anything to do with them since his mother’s funeral some 15 years previously.
[3] The Deceased had made a will with a Paraparaumu firm of solicitors on 13 December 2005. That Will appointed Alfred Stephen Fairbairn of Paraparaumu,
PUBLIC TRUST v FAIRBAIRN [2023] NZHC 2605 [19 September 2023]
solicitor, and Alfred Dominic Harris of Lower Hutt, insurance broker, to be the executors and trustees. After payment of debts the residue of the estate went to two old friends of the Deceased’s.
[4] Up until the last few weeks of his life, the Deceased lived in his own home at Paraparaumu. He appears to have been relatively isolated, with no family contact and very little contact with friends. The one exception was his next door neighbour, Carly May Johnson (Carly). It appears that she was very good to him and looked after him.
[5] Towards the middle of 2022 the Deceased’s health was deteriorating and he knew that he did not have long to live. On or around 13 June 2022 he contacted the Public Trust’s Kapiti Office and requested that someone come to the Winara Rest Home to take instructions for a will.
[6] On the morning of 20 June 2022, Kimberley Renee Rayner (Ms Rayner), an employee of the Public Trust, met with the Deceased. She took with her a copy of the Public Trust’s standard Will Instructions form. She filled out parts of that form after having sought instructions from the Deceased. Some parts of the form were not filled out at all and, importantly, Ms Rayner did not have the Deceased sign the form.
[7] Parts of the form were filled out in diagrammatic fashion rather than in full sentences. The critical part is the entry below the printed question “How would you like the residue of her estate to be distributed?” The words “Carly Johnson” were written with an arrow running down from it to the words “Carly’s children (none yet)”. A further arrow below that to the word “Charity” and then the names of four charities with 1/4 beside each charity.
[8] Prior to meeting with the Deceased, Ms Rayner had unsuccessfully attempted to contact a doctor at the rest home to obtain the doctor’s views as to the testamentary capacity of the deceased. It seems that the deceased had times of lucidity interspersed with times where, as a result of pain or medication, he was unable to be assessed by the doctor.
[9] Ms Rayner arranged for a will to be prepared in accordance with the instructions set out in the “Wills Instructions” form.
[10] Ms Rayner contacted the doctor at the rest home with a request for the doctor to determine whether the Deceased had testamentary capacity. The Deceased was too unwell to be assessed. Ms Rayner concluded that it was best to have the Will signed given the Deceased’s declining health.
[11] On 11 July 2022, Ms Rayner visited the rest home together with a colleague. She read the Will to the deceased and confirmed that he was happy with it and wanted to sign it. Ms Rayner noted that the Deceased’s signature was shaky and for that reason, upon her return to her office, prepared what she described as a “shaky signature clause” to go on her file with the Will.
[12] On 14 July 2022, Ms Rayner telephoned the rest home doctor to see if he had had an opportunity to assess the Deceased’s capacity. The doctor indicated that as a result of the Deceased’s declining health, he had not had an opportunity to do that. The Deceased died late on the evening of that day.
[13] Subsequently, the rest home doctor confirmed that when he saw the Deceased on the morning of 11 July 2022, the Deceased was not capable of making any important decisions.
[14] On 8 November 2022, Ms Rayner instructed Dr Jane Casey, a consultant psychiatrist and psychogeriatrician, with a request for an opinion on the Deceased’s testamentary capacity at the time of giving the Will instructions and of executing the Will. In summary, Dr Casey’s opinion was that, on the balance of probabilities, the Deceased had testamentary capacity to give instructions and express his testamentary intentions on 22 June 2022, but did not have testamentary capacity on the day he signed the Will on 11 July 2022.
Legal issues
[15] The plaintiff seeks an order under s 14 of the Wills Act 2017 validating the unsigned Will Instructions form on the basis that that document:
(a)appears to be a will;
(b)does not comply with s 11 of the Wills Act 2007 in that it was not signed by the Deceased nor witnessed by two independent persons;
(c)came into existence in New Zealand; and
(d)expresses the testamentary intentions of the deceased.
[16] One of the beneficiaries under the 2005 Will retained counsel who filed two memoranda in relation to these proceedings.
[17] The memoranda raised a number of relevant concerns in respect of this application. These were as to whether:
(a)the deceased had testamentary capacity on 20 June 2022 when the Will Instruction form was filled out;
(b)the Instruction Form set out the Deceased’s testamentary intentions; and
(c)sufficient steps have been taken to locate the original of the 2005 Will.
[18] The memoranda refer to the fact that Dr Casey’s report proceeded on the assumption that the Deceased had no prior Will, when that was incorrect, and that Dr Casey’s report was also based on the incorrect assumption that he had no friends other than Carly. It was also noted that the Deceased’s friends were the two beneficiaries named in the 2005 Will.
[19] It was also submitted that the Instruction Form did not specify clearly who was to benefit from the Will. It was submitted that the notes were ambiguous and that the Court could therefore not safely infer an intention of the Deceased.1
1 Relying on Re Avison [2017] NZHC 415.
[20] The memoranda also referred to the inconsistency between the notes referring to a gift-over clause to the second defendant’s children and this being inconsistent with Ms Rayner’s subsequent notes. The anomaly with the box relating to funeral being ticked under the heading “let my family decide” was also noted given that the deceased was estranged from his family.
[21] The memoranda refers to an email from Ms Rayner to the care home dated 14 July 2023 which sets out cls 3 and 4 of the 2022 Will and states:
… Please note that the wording under clause 4.2 “I request that my family decide” was generic wording and Bruce expressed that he would be happy for whoever was arranging his funeral to decide where his body be kept between passing and his final resting place.
[22] It is correctly submitted that this is inconsistent with what was recorded in the Will.
[23]It was further noted that the Instruction Form contained a provision which said:
The foregoing Instructions shall take effect as my last Will and shall have the effect of cancelling my previous Wills.
[24] This provision had not been signed by the Deceased and neither had the overall document.
[25] In an affidavit of 4 September 2023, Ms Rayner responded to a number of the issues raised. Ms Rayner expanded on her explanations in the oral evidence she gave at the hearing. She explained that the fact that the notes were dated 30 June 2022 rather than 20 June 2022 was an error on her part and that she thought she had become confused with the fact that it was the Deceased’s birthday on 30 June. She refers to the fact that the notes she wrote on return to the office were clearly dated 20 June.
[26] In relation to an Enduring Power of Attorney (EPA), (a form also executed by the Deceased on 11 July 2022) having ticked the box saying “no – I have no current EPA in relation to property”, when it appears that the Deceased did have a current EPA which he wanted to say, Ms Rayner said:
I do not specifically remember asking Mr Sullivan if he had existing EPOA documents when I met with him. I most likely assumed he did not because of the email from the social worker in Wellington which stated:
I am working with [the Deceased] who from my understanding has contacted the Public Trust in the past around setting up an EPOA for Property. He is currently in hospital with the view of possible discharge to residential care. He is very interested in setting up his EPOA with the Public Trust.
[27]Ms Rayner later deposed:
It is possible that I then assumed that he did not have an existing EPOA, and I may not have asked him and just ticked the “no prior EPOA box”.
[28] In her affidavit of 4 September 2023, in relation to the handwritten notes that she had made in relation to the heading “How would you like the residue of your estate to be distributed?” Ms Rayner says, in relation to the entry indicating an intention for there to be a gift-over to Carly’s children:
I did not see a need to correct the diagram as it was not part of the formal Wills instructions form, and was just an initial note made by me …
[29] This statement cannot be correct. The handwritten notes made by Ms Rayner on the form are an integral part of the form itself as they represent her understanding of what the Deceased told her at the time. However, the reality seems to be that after initially mentioning a gift-over to Carly’s children, during the course of his meeting with Ms Rayner on 20 June 2023 the Deceased subsequently indicated that this would be unnecessary given the prospect of his imminent death and the fact that Carly did not have any children. Ms Rayner should have amended the written instructions to reflect that change but did not.
[30] Counsel’s memorandum also asserted that the plaintiff had changed its position and that instead of seeking to validate the signed Will, the plaintiff was now seeking to validate the Will Instructions document. That is not correct. The application has always been to have the Will Instruction document validated as if it were the final Will.
Analysis
[31] In order to grant the application I have to be satisfied that the Will Instruction notes express the deceased’s testamentary intentions. I may consider:
(a)the document itself;
(b)evidence on the signing and witnessing of the document;
(c)evidence on the Deceased’s testamentary intentions; and
(d)evidence of statements made by the Deceased.
[32] If I am satisfied that the document accurately records the Deceased’s testamentary intentions, I am entitled to validate it, notwithstanding that it does not comply with the formal requirements for a will, including being signed by the Deceased and his signature being witnessed by two independent witnesses.2
[33] The starting point is that there must be a document. Section 6 of the Wills Act defines a document as “any material on which there is writing”. “Writing” is defined by s 13 of the Legislation Act 2019 as “Representing or reproducing words, figures, or symbols in a visible or tangible form or medium (for example, in print).” I find that the Wills Instructions notes are therefore “a document”.
[34] In relation to whether the document appears to be a will, there is a divergence of views whether drafts or notes of instructions of testamentary intentions can be validated under s 14. Professor Nicola Peart has reservations.3 Australian cases have held that, in order to be validated, such a document must be in its final form. However, Professor Peart notes that there is a difference in wording between the New Zealand Wills Act and the statutes in force in some of the Australian states, where the requirement is for the Court to be satisfied that “the deceased person intended the document to constitute the person’s Will”.4
2 See Re Estate of Brown HC Auckland CIV-2010-404-6328, 13 October 2010.
3 Nicola Peart “Where There Is A Will, There Is A Way – A New Wills Act for New Zealand” (2007) 15 Wai L Rev 26 at 34.
4 At 32–34.
[35] The plaintiff has not argued that the Deceased intended the Will Instruction notes to be his final will, but says that the contents of the document are an expression of his testamentary intentions that was final rather than being preliminary or subject to change.
[36] In terms of whether the Will Instruction notes represent the Deceased’s final testamentary intentions, I need to consider what weight I can put on the fact that on 11 July 2022 he signed a will prepared consistently with those instructions.
[37] In her affidavit of 4 May 2023, Ms Rayner expresses the view that on 11 July 2022, at the time the Deceased signed the final Will, “his mind appeared to be intact” and that after she read him the Will, the Deceased confirmed to her that he was happy with it and wanted to sign it. The problem with this evidence is that the plaintiff’s own expert witness, Dr Casey, has confirmed that, on 11 July 2022 the Deceased lacked testamentary capacity. Therefore, whatever Ms Rayner’s views were as to whether the Deceased’s mind was “intact”, they cannot contradict the evidence of the plaintiff’s own expert witness. I therefore put to one side the fact that the Deceased signed a will consistent with the contents of the Wills Instruction notes.
[38] In New Zealand, there have been many cases where the courts have declared draft documents to be valid wills in terms of s 14.5
[39] I approach this case on the basis that if I can be satisfied that the content of the Wills Instructions notes represented the final testamentary intentions of the Deceased and were intended by him to be expressed in a new will which he intended to sign, then I am able to find that the document appears to be a will.
[40] As noted above, on its face, there are a number of deficiencies in the document which, without explanation, may support a conclusion that the Court could not be satisfied that it appeared to be a will and contained the Deceased’s final testamentary intentions. In that context, Ms Rayner’s evidence, both in terms of her two affidavits and the evidence given on oath at the hearing, is critical.
5 See for example the cases referred to in Re Hickford (Dec’d) HC Napier CIV-2009-441-369, 13 August 2009.
[41] She has provided an explanation as to the error in the date of the notes. She has also explained what at first appeared to be inconsistencies such as ticking the box “let my family decide” in connection with the question, “Do you wish a funeral or memorial service to be held in memory of you?” as well as the reference to the possible gift-over to Carly’s children when she had no such children. She also addresses the important factor of why she did not get the Deceased to sign the notes and why the form itself was incomplete.
[42] Ms Rayner’s evidence was that she did not, on 11 July 2022, appreciate the significance of having the Deceased sign the Wills Instruction form. So while that may be a surprising comment from someone with the level of experience and seniority at Public Trust as Ms Rayner, having observed her give evidence, I am satisfied she is genuine in expressing that view. It appears that Ms Rayner was either careless or made assumptions about some matters on 20 June 2022, for example, assuming that the Deceased did not have an EPA when completing the EPA form, but that does not impact directly on the issue of whether or not the Deceased’s final testamentary wishes are represented in the Wills instruction notes.
[43] Likewise, it would have been much more helpful if the form had been filled out using full sentences rather than a diagram to record the Deceased’s testamentary instructions. However, given Ms Rayner’s explanations, I accept there is certainty that the Deceased intended that the beneficiary in his estate was to be Carly and the notes contain his final wishes rather than being provisional or subject to change.
[44] In light of the evidence of Dr Casey, I am obliged to accept that the Deceased had testamentary capacity at the time the Will instructions were given. He knew that he did not have long to live and he knew that he wished Carly to be the beneficiary of his Will rather than anyone else. The contents of the Will instruction notes were intended by him to form the basis of a new and final Will.
[45] The fact that the Deceased’s instructions were not recorded as clearly as they could have been is not reflective of any indecision or uncertainty on the part of the Deceased, but results from the deficiencies in the manner in which the Deceased’s instructions were recorded by Ms Rayner.
Outcome
[46] Accordingly, I declare the Will Instruction notes to be a valid will and the last will and testament of the Deceased and grant probate to the Public Trust in solemn form in respect of that validated will.
Churchman J
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiff
0