Public Trust v Forster
[2023] NZHC 2339
•25 August 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-328
[2023] NZHC 2339
UNDER section 14 of the Wills Act 2007 IN THE MATTER OF
an application to validate a Draft Will of the late Sandra King
BETWEEN
PUBLIC TRUST
Applicant
AND
ALEX FORSTER
Respondent
Hearing: 25 August 2023 Appearances:
G M Cairns for Applicant
No appearance for the Respondent
Judgment:
25 August 2023
JUDGMENT OF McQUEEN J
[1] This proceeding relates to a draft will of the late Sandra King (the deceased). Public Trust (the applicant), as the executor of the deceased’s estate, filed an originating application dated 7 June 2023 for an order validating the deceased’s draft will, pursuant to s 14 of the Wills Act 2007 (the Act). The draft will was prepared by the deceased two days prior to her death, and was not signed or witnessed at the time of her passing on 18 September 2022.
[2] The respondent is Mr Alex Forster, who is the deceased’s son. Mr Forster lives in South Africa. By way of an email dated 13 July 2023, Mr Forster informed counsel for the applicant that he intended to take no further action in respect of the proceeding. The applicant’s originating application is therefore effectively unopposed. In a minute
PUBLIC TRUST v FORSTER [2023] NZHC 2339 [25 August 2023]
dated 24 July 2023, Churchman J directed that the matter be set down for what he described as effectively a formal proof hearing.1
[3]The matter then came before me for a brief hearing on 25 August 2023.
Factual background
The deceased
[4] The deceased was from South Africa. She moved to New Zealand in 2007, initially settling in Hamilton, before relocating to Wellington. The deceased was diagnosed with terminal cancer during 2020, and by August 2022, was not expected to live more than a few weeks.
[5]The deceased’s surviving family members include:
(a)Tracey Botha, her niece, who resides in New Zealand;
(b)Kayleigh King, her daughter, who resides in New Zealand;
(c)Bianca Forster, her daughter, who resides in South Africa;
(d)Alex Forster, her son, who resides in South Africa; and
(e)Peter King, her former husband, who resides in New Zealand.
[6] At the time of her death on 18 September 2022 the deceased was residing in Mary Potter Hospice, and being assisted by Ms Botha, as well as her friend and colleague Ms Melissa Manks.
1 Public Trust v Forster HC Wellington CIV-2023-485-328, 24 July 2023 (Minute of Churchman J). In this Minute, Churchman J also directed that if the application to validate the will is granted, a copy of the judgment recording that should be served on the former husband of the deceased, Mr Peter King.
The draft will
[7] On or around 11 September 2022, the applicant received a telephone enquiry from the deceased, who wished to schedule an appointment to prepare a will. At this time, she had just moved into the Hospice. On 16 September 2022, Ms Samantha Clemens, an employee of the Public Trust, called the deceased to obtain instructions for a will.
[8] In an affidavit in support dated 4 April 2023, Ms Clemens describes her phone call with the deceased. Ms Clemens says that the deceased was able to describe her assets in detail and that she clearly explained who she wanted to benefit by provision in her will.
[9]Ms Clemens says that the deceased’s instructions were to leave a cash gift of
$20,000 to Mary Potter Hospice, and a further cash gift of $25,000 to Ms Botha. The deceased instructed that the residue of the estate was to be distributed among her three children in unequal shares, with:
(a)40 per cent to Ms King;
(b)40 per cent to Ms Forster; and
(c)20 per cent to Mr Forster.
[10]Ms Clemens states that:
11.Mrs King explained that she believed her son, Alex, should receive less because he was a male and could provide for himself.
12.Mrs King also made it clear that she did not want her husband, Mr Peter King, from whom she had been separated for the last five years, to receive anything from her estate.
…
14. I explained the effects of the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949 and the Property (relationships) Act 1976 to Mrs King. She confirmed that she understood that Alex and Peter could bring a claim against her estate.
…
16. Mrs King confirmed that she had no assets in her homeland of South Africa and that she did not have a Will in New Zealand. She did not mention anything about having a Will back in South Africa.
[11] Ms Clemens told the deceased that she would draft a will, and then arrange for someone to visit her at the Hospice on 19 September 2022. In the intervening period, she asked medical staff at the Hospice to confirm that the deceased had testamentary capacity. Throughout this process, Ms Clemens made detailed notes. She received a medical certificate confirming that the deceased had testamentary capacity on 16 September 2022, and drafted the will the same day. Ms Clemens’s notes confirm her account of her conversation with the deceased. The draft will is also aligned with the instructions received. Unfortunately, the deceased passed away prior to the meeting scheduled for 19 September 2022.
[12] Ms Clemens’ evidence is also supported by evidence provided by Ms Botha, who indicates that the deceased told her that she did not want Mr Forster to receive as much as Ms Forster or Ms King. Ms Botha explains that the deceased told her that Mr Foster had earlier received quite a bit of money from her. Ms Botha also provides evidence as to instructions she received from the deceased while she was still alive, to pay part of the proceeds of a life insurance policy to her children in unequal shares, as soon as the money from that policy was received, with the remaining funds to form a part of her residual estate.
[13] When Ms Botha learned the deceased’s death was imminent, she tried to transfer the life insurance proceeds but was unable to, as it was the weekend. Accordingly, on 19 September 2022, Ms Botha paid $92,900 to Ms King, and
$100,000 to Ms Forster. Then, on 20 September 2022, Ms Botha paid $20,000 to Mr Forster.
The estate
[14]Ms Clemens says that the current value of the estate is approximately
$155,000. However, she notes that the Public Trust’s position is that the life insurance payments made by Ms Botha to the deceased’s children after her death were made
pursuant to an authority to act that ceased as at the time of the deceased’s death, and that those payments are accordingly void.
[15] Ms Clemens says that if the draft will is validated and granted probate, the applicant will need to take steps to unwind those transfers or off-set them against the residual beneficiaries’ entitlements under the draft will. Ms Botha, in her affidavit, accepts that is appropriate, and that:
26.I only made the bank transfers to Sandra’s three children after she had passed away because she had specifically asked me to make the transfers as soon as the money was in her bank account. I believe that I was acting in good faith to carry out Sandra’s wishes and only found out a few days after Sandra has passed away that she had instructed Public Trust to prepare a Will for her.
The applicant’s position
[16] Ms Clemens deposes her belief that the applicant is satisfied that the draft will is likely to be the deceased’s only expression of her testamentary intentions, for the following reasons:
(a)after making enquiries, the applicant is satisfied the deceased had not prepared or signed a will prior to giving instructions on 16 September 2022;
(b)no documents have been found that set out the deceased’s testamentary intentions that are prior to 16 September 2022;2
(c)the deceased expressed a clear desire to provide for her children, niece, and the Hospice, and the draft will and contemporaneous documentation is consistent with this;
(d)there is confirmation from a medical professional that the deceased had testamentary capacity at the time she gave instructions; and
2 This is confirmed by evidence provided by Ms Botha, who alongside Ms Forster, the deceased’s daughter, searched for any documentation that might have expressed the deceased’s testamentary intention, and could not find any.
(e)the draft will was prepared on the same day that the deceased gave instructions.
[17] Ms Clemens notes also, that if the draft will is not validated, the estate will pass to the deceased’s former husband, Mr King, under intestacy laws.3 Ms Clemens explains that Public Trust opposes to that outcome. She says that on 1 September 2022, Mr King filed divorce proceedings in the Christchurch Family Court, but these were discontinued by the relevant court upon becoming aware that the deceased had died. Ms Clemens says that even if the draft will is validated, Mr King would still be entitled to bring a claim against the deceased’s estate pursuant to the Property (Relationships) Act 1976, and that therefore no unfairness will arise.
The positions of the beneficiaries
[18] Written and signed consents have been provided for the validation of the draft will by Ms King, Ms Forster, Ms Botha, and Ms Donna Gray (Acting Chief Executive of the Mary Potter Hospice Foundation of Wellington). As noted above, Mr Forster has been served and has not provided a consent but has indicated to counsel for the applicant that he does not intend to take any further steps. Mr King, the deceased’s former husband, has not been served.
Other evidence
[19] A further affidavit was provided by Ms Manks, a friend and colleague of the deceased. Ms Manks assisted the deceased, alongside Ms Botha, to fill out the requisite paperwork to receive the proceeds of her life insurance policy. She says that the intent was to do this promptly so that the deceased could distribute the proceeds prior to her death. Ms Mank’s evidence broadly confirms the evidence of the other deponents. She comments also that the deceased’s marriage with Mr King did not end amicably, and that on their separation, they divided up their property informally.
3 See Administration Act 1969, s 77.
Relevant law
[20] Pursuant to s 14 of the Act, this Court has the power to validate a document that appears to be a will and does not comply with s 11 of the Act, if it is satisfied that the document expresses the deceased person’s testamentary intentions. In making its determination as to whether to validate the document, the Court may consider the document; evidence on the signing and witnessing of the document; evidence on the deceased person’s testamentary intentions; and evidence of statements made by the deceased person.
[21] Section 11 of the Act requires a will to be in writing and sets out specific requirements for how the will must be signed and witnessed. These requirements are:
(a)the will must be in writing;
(b)the will-maker must sign the document or direct another person to sign the document on their behalf in their presence; and
(c)at least two witnesses must be in the will-maker’s presence when the will-maker complies with the requirement in (b), and those two witnesses must also sign the document in the will-maker’s presence.
As this Court has recently stated:4
[12] The principles to be applied in the present context are now well established. In short, the onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased. The Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.
[13] In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.
4 McKay v Society of St Vincent De Paul New Zealand [2022] NZHC 846 (footnotes omitted).
Analysis
[23]The applicant submits that the Court can be satisfied that the draft will:
(a)is a document that records the deceased’s testamentary instructions and appears to be a will;
(b)appears to be a will in that it makes specific bequests to named beneficiaries and appoints Public Trust as the executor;
(c)does not comply with s 11 of the Act; and
(d)otherwise expresses the last testamentary intentions of the deceased because it records her wish to leave cash gifts to her niece and the Mary Potter Foundation, and then divide the residue of her estate into three unequal shares, with 40 per cent to each of her daughters and the remaining 20 per cent to her son.
[24] On the evidence discussed above, I am satisfied on the balance of probabilities that the draft will of the deceased expresses her testamentary intentions, for the following reasons:
(a)Ms Clemens received instructions from the deceased two days before she passed away;
(b)the draft will was drafted on the same day as instructions were received;
(c)the deceased was considered to have testamentary capacity by a medical professional, this assessment having also been made on the same day as instructions were received;
(d)the instructions given to Ms Clemens are broadly consistent with the deceased’s intentions as described by Ms Botha and Ms Manks;
(e)no other documentation has been located that indicates that the deceased had any other will or had expressed her testamentary intentions in any other forum; and
(f)the instructions given to Ms Clemens appear to have been instructions given by a person with clear intentions as to what to do with their estate.
[25] I am also satisfied that the draft will does not comply with s 11 of the Act and appears to be a will in that it makes specific bequests to named beneficiaries and appoints Public Trust as the executor.
[26] On the basis of the consents provided by the beneficiaries, and the indication provided by Mr Forster, I am satisfied that no unfairness will arise should the draft will be validated. The evidence before this Court indicates that Mr King is unlikely to make a claim against the estate. Nevertheless, it is appropriate that he be served with this decision in any event.
Result
[27] Accordingly, I make an order declaring the draft will to be a valid will pursuant to s 14 of the Act. I direct that this judgment be served on Mr King.
[28] Counsel for the applicant sought that the applicant’s reasonable costs and disbursements be paid out of the estate. I agree that this is an appropriate outcome and order that the applicant’s costs on a 2B basis are to be paid from the estate.
McQueen J
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for the Applicant
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