Public Trust v Kitching
[2024] NZHC 1680
•25 June 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2023-412-113
[2024] NZHC 1680
UNDER Section 14 of the Wills Act 2007 IN THE MATTER OF
an application to validate a Draft Will of the late Edward Shaun Michael Kitching
BETWEEN
PUBLIC TRUST
Applicant
AND
MEGAN KITCHING
First Respondent
AND
JOHN KITCHING
Second Respondent
AND
CHARLES NICHOLAS BLACKWOOD
Third Respondent
AND
JANET BLACKWOOD
Fourth Respondent
AND
ROYAL NATIONAL LIFEBOAT INSTITUTION UNITED KINGDOM
Fifth Respondent
AND
THE ORNITHOLOGICAL SOCIETY OF NEW ZEALAND INCORPORATED
Sixth Respondent
Hearing: 19 June 2023 Appearances:
G M Cairns for Applicant
Judgment:
25 June 2024
JUDGMENT OF DUNNINGHAM J
PUBLIC TRUST v KITCHING [2024] NZHC 1680 [25 June 2024]
This judgment was delivered by me on 25 June 2024 at 9.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
[1] The applicant, the Public Trust, applies for orders under s 14 of the Wills Act 2007 (the Act), to validate the unsigned will instructions of the late Mr Edward Shaun Michael Kitching (the deceased) as a codicil to his will (the draft codicil).
[2] The deceased passed away on 7 January 2023, and the draft codicil was prepared at an unknown time in the months before his death.
[3] The deceased is survived by his two children: Megan Kitching and John Kitching. The deceased’s estate is valued at around $650,000 less costs to administer the estate.
The deceased’s last will
[4] The deceased’s last will was executed on 25 May 2016 (“the 2016 will”). Relevantly, it includes the following provisions:
(a)At clause 4.1, a monetary gift of $1,000 each to the deceased’s friends Charles Nicholas Blackwood and Janet Blackwood if they survived the deceased.
(b)At clause 4.2, a monetary gift of $50,000 to the Royal National Lifeboat Institution United Kingdom.
(c)At clause 5.1, a gift of the deceased’s collection of books, which are mainly associated with nautical and ornithological topics, to go to the Cruising and Navigation Association of New Zealand, but providing, without imposing any trust, if that was not achievable in terms of the Association not wanting the books, then other options could include the Maritime Museum or Rare Books in Auckland.
(d)At clause 5.2, a gift of the deceased’s telescope and accompanying tripod to the Ornithological Society of New Zealand Incorporated.
(e)At clause 7, a provision requiring the residuary estate to be split equally between the deceased’s two children, with a substitutional gift to their children who reach the age of 20 years, in the event that either parent dies before the deceased dies.
The draft codicil
[5] The deceased’s children have since located the draft codicil. It is a handwritten document entitled “Amendments to the will of E. S. M. Kitching”. In it, there are instructions which relate to the provisions of the 2016 will. In the margin of the draft codicil, it includes the number of the relevant clause of the will which is sought to be amended. By way of example, the draft codicil says “4.2 Amend to $20,000.”
[6] In the applicant’s view, these instructions alter the terms of the will. The use of the words “amendments to” show an intention to alter certain provisions of the will as opposed to revoking the will entirely.
[7] Specifically, the applicant submits that the draft codicil is intended to alter the will as follows:
(a)clause 4.1 of the will is deleted, so Charles Blackwood and Janet Blackwood would no longer receive a monetary gift of $1,000 each;
(b)the gift to the Royal National Lifeboat Institution United Kingdom set out in cl 4.2 of the will is reduced from $50,000 to $20,000;
(c)the deceased now gives both his collection of ornithological books and his telescope and tripod to the library of the Ornithological Society of New Zealand;
(d)the deceased’s nautical books and charts are to be offered for sale to “Boat Books” in Auckland, rather than gifted to the Cruising and Navigation Association of New Zealand.
[8] The top of page one of the draft codicil provides for a funeral wish. Clause 3 of the will provides that the deceased wishes to be cremated. The funeral wish in the draft codicil also refers to clause 3 and extends the deceased’s wish by adding “I wish to be taken from the place of death directly to the crematorium …”.
[9] In terms of the amendments, the applicant observes there is no longer an intended gift of the nautical books and charts to Boat Books in Auckland. Rather, they are intended to be offered for sale to that business and the proceeds pass under the residuary clause of the will.
[10] It is also clear that the ornithological books are intended to be gifted to the Ornithological Society of New Zealand. The applicant considers that the fact the nautical books are now to be offered for sale to Boat Books in Auckland, together with the fact the collection of bird books are intended to be specifically given to the Ornithological Society of New Zealand, suggests the deceased intended that cl 5.1 of the will be replaced by his subsequent wishes and any remaining books would simply pass under the residuary clause of the will.
[11] The applicant further notes that the Cruising and Navigation Association of New Zealand was dissolved in 2020. If the Court agrees that cl 5.1 of the will is revoked, there is no requirement to locate and serve a charity or organisation with similar aims as part of the application to validate the draft codicil.
[12] There is also a list of items on page one of the draft codicil. The list reads as follows:
boats books
computer + bank
sextants (2) Plath #43856 Davis #A88076. HBC lawns
vehicle tools
That list is then followed by his children’s names and their contact addresses.
[13] The Public Trust is of the view that the balance of the draft codicil simply comprises notes to assist the executor when dealing with the estate administration. The notes describe the particular assets owned by the deceased and the Public Trust takes the view there is nothing recorded there that indicates an intention to alter the provisions of the will or anything that would be inconsistent with the intended gifts described on page one of the draft codicil.
[14] Accordingly, the Public Trust submits that on the balance of probabilities, the deceased’s intention when preparing the draft codicil was:
(a)he intended to make the gifts outlined at paragraph [7](b) and (c) above;
(b)he intended to revoke cl 5.1 of the will (on the basis that the only books to be specifically gifted were those specified in the draft codicil);
(c)he intended for the nautical books and charts to be offered for sale to Boat Books in Auckland;
(d)he intended to add to his funeral wish to be cremated at cl 3 of the will by adding “I wish to be taken from the place of death directly to the crematorium”; and
(e)he intended the remainder of the draft codicil to merely record notes and not to have the effect of altering the will.
[15] The Public Trust also notes that the changes to the draft codicil are not substantial and the residuary estate still passes to the deceased’s children pursuant to cl 7 of the 2016 will.
[16] Accordingly, Public Trust seeks an order that the draft codicil is valid under s 14 of the Act and the 2016 will is amended accordingly.
Service of these proceedings
[17] The parties who are affected by this application are all named as respondents to the application. The Public Trust has obtained consents from the deceased’s children and so service was not required from them.
[18] When the proceedings were initially filed it was unclear whether Mr and Mrs Blackwood were still alive as they no longer had contact with the deceased. In due course, it was ascertained that Mr Blackwood had died and Mrs Blackwood was in a retirement village. She was subsequently served with the proceedings but has filed no opposition.
[19] Service has been effected on the Royal National Lifeboat Institution United Kingdom. That organisation, too, has not filed any opposition to the application.
[20] Finally, the Ornithological Society of New Zealand Incorporated has been served and it, too, has filed no opposition to the proceedings.
[21] Given the dissolution of the Cruising and Navigation Association of New Zealand, there was no requirement to serve that party.
[22] For the above reasons, I treat the application as unopposed and turn to whether there is jurisdiction to make the orders sought.
Legal principles applying to the application
[23]Section 14 of the Act provides as follows:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3)The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[24]Under s 8(1) of the Wills Act, the term “will” is defined as follows.
(1)Will means a document that—
(a)is made by a natural person; and
(b)does any or all of the following:
(i)disposes of property to which the person is entitled when he or she dies; or
(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)appoints a testamentary guardian.
[25] Under s 8(3) the term “will” when referred to in the Act means whichever is appropriate of the following:
(a)a will as defined in subsection (1); or
(b)a document that changes a will as defined in subsection (1); or
(c)a document that revokes a will as defined in subsection (1); or
(d)a document that revives a will as defined in subsection (1); or
(e)a codicil to a will as defined in subsection (1).
Should the draft codicil be validated under s 14 of the Wills Act 2007?
[26] In the present case, the applicant submits and I accept, that the Court can be satisfied that:
(a)the draft codicil is a document that records the deceased’s testamentary instructions (as well as other notes to assist the executor and the administration of the estate), noting that the affidavit of Megan Kitching confirms that the deceased had discussions with his daughter about his wishes that are consistent with what he has set out in the draft codicil;
(b)the draft codicil appears to be a will in that it makes specific bequests to name beneficiaries and other intended alterations to the 2016 will;
(c)the draft codicil does not comply with s 11 of the Act because it was not signed by the deceased nor witnessed by two independent persons;
(d)pursuant to s 8 of the Act, a codicil is considered a document that can be considered as a will;
(e)the deceased was residing in New Zealand prior to his death and it is implicit that the draft codicil came into existence in New Zealand, but even if not, the requirements of s 14(1)(c) would still be met.
[27] In terms of articulating the defendant’s testamentary instructions contained in the draft codicil, I am satisfied that on the balance of probabilities, the deceased’s intentions were:
(a)to revoke clause 4.1 of the 2016 will so that Charles and Janet Blackwood would no longer receive a monetary gift of $1,000 each;
(b)to reduce the gift to the Royal National Lifeboat Institution United Kingdom set out at clause 4.2 of the 2016 will, from $50,000 to
$20,000;
(c)to give his collection of ornithological books and his telescope and tripod to the library of the Ornithological Society of New Zealand;
(d)to revoke clause 5.1 of the 2016 will so that the only books to be specifically gifted were those outlined in the draft codicil;
(e)to provide that the nautical books and charts are now be offered for sale to Boat Books in Auckland but, however disposed of (presuming Boat Books did not wish to purchase them), they would form part of the residuary estate;
(f)to add to his funeral wish to be cremated at clause 3 of the 2016 will, the words “I wish to be taken from the place of death directly to the crematorium”; and
(g)in the remainder of the draft codicil to record notes which were to assist the executor and did not have the effect of altering the 2016 will.
[28] For completeness, I also note there is no evidence to suggest that the deceased had changed his mind prior to his death regarding the terms of the draft codicil. To the contrary, there is supporting evidence from the deceased’s daughter that her father had spoken to her about making these changes to the last will in the months prior to his death.
Result
[29] Accordingly, being satisfied that the draft codicil should be validated as a codicil to the will under s 14 of the Act, I make the following orders:
(a)declaring the document marked “B” and referred to in the affidavit of Cassandra Lee Fellows of Auckland, Principal Trustee, dated 6 September 2023, to be testamentary instructions that change part of the last will of the deceased as set out in paragraphs [27] of this decision;
(b)granting probate in common form over the draft will as a codicil to the last will of the deceased;
(c)authorising the costs and disbursements of this application to be paid out of the estate funds.
Solicitors:
Thomas Dewar Sziranyi Letts, Wellington
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