Public Trust v Lawrence
[2022] NZHC 558
•24 March 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-135
[2022] NZHC 558
IN THE MATTER OF the Estate of Bernard Wallace Lawrence BETWEEN
PUBLIC TRUST
Applicant
AND
MICHAEL BERNARD LAWRENCE
First Respondent
AND
ANTONY PAUL LAWRENCE
Second Respondent
AND
HELEN ANNE CAMERON
Third Respondent
Hearing: 1 March 2022 Appearances:
Appearance excused for Applicant
K W Clay for First and Second Respondents by VMR
L M McKeown and A A Sawant for Third Respondent by VMRJudgment:
24 March 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 24 March 2022 at 2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
RE: ESTATE OF LAWRENCE [2022] NZHC 558 [24 March 2022]
Introduction
[1] The hearing of this application is the culmination of a long running dispute between the children of the late Bernard Lawrence over the administration of their father’s estate. At issue is:
(a)which of his last two wills should be admitted to probate; and
(b)who should be appointed to administer the estate?
[2] Sadly, despite intermittent attempts by one side or the other to reach agreement, they have been unable to co-ordinate their offers to settle. Their dispute must now be resolved in the public forum of the Court.
Background
[3] Mr Lawrence and his wife Betty had three children; Michael, Antony (Tony), and Helen (now Helen Cameron).1 Tony and Michael live in Christchurch, and Helen lives in Sydney, Australia.
[4] Mr and Mrs Lawrence’s health declined in their last years and they made the decision to move into a unit in an aged care facility, Ilam Lifecare, and sell the family home. In mid-2014, an enduring power of attorney (EPOA) held by Tony and Michael was activated due to concerns about Mr Lawrence’s physical and mental decline. Mrs Lawrence died on 2 July 2017 and Mr Lawrence died on 23 August 2019.
[5] Both Mr and Mrs Lawrence had made wills in 2013. Mrs Lawrence’s will named her husband as the executor of her estate, but with the three children named as substitute executors in the event that Mr Lawrence was unable or unwilling to act. Mr Lawrence’s will, made on 11 October 2013 (the 2013 Will), left his estate, after payment of debts, funeral expenses, taxes and duties, to his three children in equal shares. It also named all three children as executors and trustees of the will.
1 I will refer to the parties by their first names to avoid any confusion given the commonality of surname for all family members but Helen.
[6] Shortly before Mrs Lawrence died, circumstances arose which appear to have been a particular trigger for the animosity which now exists between Helen and her two brothers, Michael and Tony. They also are said to have been a trigger for the preparation of a subsequent will by Mr Lawrence on 26 March 2018 (the 2018 Will).
[7]In Helen’s first affidavit, she refers to those circumstances as follows:
In May 2017, Michael and Tony transferred $200,000 from Dad’s account to their own accounts ($100,000 each), without asking or informing Dad. I found out about the transfers after the event. I challenged Michael and Tony, on the grounds they had not asked or informed Dad of the transfer, and Dad had gained no benefit from the transfer. In fact, Dad became very stressed about the whole matter after they told them of it (I understand Michael and Tony told Dad the reason they made the transfer was because I needed money; this was wrong – I neither needed nor received any money).
[8] Michael and Tony responded to Helen’s account by giving their version of events, supported by copies of the texts and emails referred to. The brothers say:
(a)From early 2017 Helen had been pressing our father to “distribute” money, initially asking him to give her elder daughter money for furnishing her new house.
(b)When Dad did not comply she moved on to pressing him to give money to we three siblings. Tony recalled Helen told our father that he should give 150k each and that would leave him with $1M which she said he agreed was enough for him to live on. …
(c)17 March 2017 Helen texted Tony: “BTW, has Dad raised a distribution of money at all with you? Said he was going to talk to you about it.” …
(d)8 May 2017 Tony emailed Helen and Michael with attached acknowledgement of debt agreements with the aim of paying
$100,000 to each of us from one of Dad’s deposits due for renewal.
(e)10 May 2017 Helen returned her scanned, signed agreement with a strange and completely irrelevant subject line. … Tony didn’t realise the email contained an important scanned document and deleted the email.
(f)29 May 2017 Bernard Lawrence’s Westpac bank statement showed two payments of $100,000 to Michael and Tony.
…
(h)13 June 2017 Helen texted Michael: “Hello. Quick question – has Tony given you $100k from Dad or did he change his mind?” At this stage Michael informed her that she had apparently not returned to Tony the document accepting the conditions of the Acknowledgement
of Debt. Helen countered by saying she had completed it the day it was sent. ….
(i)14 June 2017 Tony searched his computer the following morning and found Helen’s missing email. He then emailed an apology for misreading and deleting Helen’s document. He mentioned the very odd subject line (with no reference to an attachment) and said: “My fault, should have read it more thoroughly so I do apologise”. He also informed her: “Your $100,000 is sitting in Mum and Dad’s joint cheque account ready to pay out. There was no intention not to pay it to you and I resent your allegation of otherwise.
(j)15 June 2017 Helen escalated the situation further in this email: “I am prepared to take this matter all the way to court if necessary, in which case I will be requesting costs against you both which as you know easily exceed one hundred thousand if the matter goes to court. In the next paragraph she wrote: “Of course all this action could be avoided by one of you being substituted by me in the finance space. However, if you want litigation in the public arena then so be it, and our relationships as a family will be over”.
[9] Helen then declined to accept the funds set aside for her, and so the brothers immediately repaid the funds which they had withdrawn from their father’s account. While Helen explains that in the interim, she obtained legal advice from Wynn Williams, which suggested it was inappropriate to use the EPOA to make these advances. I accept that she initiated this request and the brothers had every reason to believe she consented to the advances being made in this way. As Michael said in an email sent at the time “you are the one who has been pushing Dad for some time to release funds. My idea of loans was to facilitate this in a manner fair to us all.” Furthermore, in a letter her lawyers sent to the brothers on 23 June 2017, it was acknowledged she had “originally consented” to the advance. In these circumstances, her statement that she “neither needed nor received any money” was misleading. It did not reveal that she had asked for the funds, albeit to assist her daughter, and expected to receive them, and only rejected the funds after the brothers had released funds to themselves, believing this had been agreed to by her.
[10] No matter the rights and wrongs of that incident, Helen’s accusations against her brothers (which included that Tony was “thieving from his own sister”) and her subsequent threat to challenge his right to hold the EPOA in the courts (albeit not followed through), has caused a falling out between the siblings which is relevant to subsequent events, including the making of the 2018 Will.
Mr Lawrence’s cognitive decline
[11] However, before turning to the circumstances in which the 2018 Will was made, it is necessary to outline the evidence as to Mr Lawrence’s cognitive decline in his last years.
[12] Mr Lawrence’s general practitioner, Dr Mark Cohen, had been treating Mr Lawrence since 2002. In a letter of 31 July 2014, he noted:
In the last 12 months [Mr Lawrence] has had a significant deterioration physically and mentally. … It is apparent he has a progressive cerebral degenerative condition which has resulted in a combination of physical and mental impairment.
[13] He concluded it would be unreasonable to expect Mr Lawrence to understand and make decisions around his care and welfare, or his financial affairs, and he requested activation of the EPOA. While shortly before, another doctor, Dr Anne Roche, had found only “mild cognitive impairment”; it was clear that Mr Lawrence’s cognitive ability was declining, and, acting on Dr Cohen’s recommendation, the EPOA was activated.
[14] In November 2016, a query arose as to whether Mr Lawrence could act as the executor of his sister-in-law’s estate. Ms Deidre Fell, a legal executive from the law firm, Harmans, emailed Michael saying:
If your father was still in a position of capacity, then he could apply as surviving executor having capacity. However, as his Power of Attorney has already been activated via doctor’s assessment/report, that avenue is not open.
[15] By 2017, all the children were noting deficiencies in their father’s cognitive functioning. For example, in mid-2017, Helen says her father repeatedly asked her how much money he had in the bank, but he could not comprehend or retain the answer. In late 2017, Michael recorded that a recent fall had worsened the decline of his father’s mental faculties, and he was concerned that if his father took a taxi “he’d probably get to his destination and not know what he was there for!”
[16] In June 2017, shortly after the dispute over the advances from their father’s investment, Harmans wrote to Helen’s lawyers, Wynn Williams, saying that “Michael
and Tony are using their best efforts to preserve the property owned by both their mother and father, given that both have lost capacity and are not entitled to a residential care subsidy”.
[17] When Mrs Lawrence died in early July 2017, Harmans took the view that Mr Lawrence lacked capacity to act as executor of his wife’s estate and initially treated the three siblings as executors, in accordance with the terms of Mrs Lawrence’s will.
[18] However, in late 2017, Harmans transferred the administration of Mrs Lawrence’s estate to Bishopdale Law, with Richard Sprott acting, because they identified there “may be a conflict of interest in this firm attending to the administration of the estate”.
[19] On 8 March 2018, Mr Sprott emailed the siblings, asking whether they thought their father would have the mental capacity to understand and sign a renunciation of probate for their mother’s estate. The question arose because Mr Sprott had sought a cognitive assessment of Mr Lawrence’s competence from Dr Cohen to determine whether Mr Lawrence could function in the role of executor of his late wife’s will. That assessment was provided on 7 March 2018. In it, Dr Cohen said Mr Lawrence had “a cognitive disorder within the group of senile dementia”, and “his Montreal cognitive assessment illustrated a marked impairment with a score of 9/30 (normal function is considered greater or equal to 26).” Dr Cohen went on to say:
I believe Bernard would have a basic understanding of the requirements acting as executor of his wife’s Will but would have limited ability to be able to process and make good decisions overall. I feel it is in Bernard’s best interests that he has a designated individual to assist him with these decisions and it may well be that this individual, presumably his Enduring Power Of Attorney, would have to take over full responsibility of this role. While I would ask that Bernard be opportunities (sic) to indicate his desire with regard to his own care and welfare and his financial and property decisions, it is clear to me that he is unable and not competent on the basis of cognitive decline currently.
[20] Despite Dr Cohen’s obvious concerns as to capacity, the brothers point out that Helen responded to Mr Sprott saying “I think he would be perfectly capable to act as an executor. As it is a very simple will with a single asset class, i.e. cash, I see no reason why he cannot be the executor”. In a subsequent email sent on the same day, she said “while Dad is confused at times he is definitely not stupid and has been right
across recent events. If he had been executor at the start I am sure this estate matter would have been put to bed by now, cognitive test or no cognitive tests”. The estate was subsequently administered with Mr Lawrence acting as an executor.
The 2018 Will
[21] The 2018 Will was executed on 26 March 2018 at the offices of the law firm, Harmans. Ms Fell, the legal executive who attended to the execution of the will, provided affidavit evidence, annexing the file note she made on that day recording she did not have concerns regarding Mr Lawrence’s capacity at the time.
[22] Ms Fell had met Mr Lawrence on other occasions, although it clearly had been some time since she last saw him as she extended sympathy to Mr Lawrence for his wife’s death which had occurred about nine months earlier. She recorded that Mr Lawrence “arrived under his own steam” and that his son, Michael, was present at the meeting. Ms Fell’s file note also recorded that she:
Referred to the recent unpleasantness between the children, and particularly Helen’s stance, which he acknowledged. He said that he had had a telephone call from Helen recently, mentioned that she was aware he was coming to our meeting and that she had said “whatever you want, will be.”
[23] Ms Fell says she “did not have any concerns about Bernard’s mental capacity”. She advised Mr Lawrence his current will appointed the three children to be executors. However, the new will would appoint the partners of Bishopdale Law to be executors, with the wish that Mr Sprott act on the estate. Ms Fell noted that Mr Lawrence was very happy with his dealings with Mr Sprott over his late wife’s estate. She recorded that “Bernard was very happy with this change” and he “readily signed the new will”.
[24] Helen takes issue with a number of the points recorded in Ms Fell’s file note. She points out Ms Fell was aware the EPOA was in place given that, in November 2016, Ms Fell had advised that this meant he was unable to act as executor of his sister-in-law’s estate. Helen says Ms Fell incorrectly recorded that her father arrived at the meeting “under his own steam”. He did not drive, nor was he likely to have been able to arrange a taxi, and he was driven there by Michael. Helen also expresses concern that Michael was present throughout the meeting. Helen says that Ms Fell would have known the amendment to the will was to her detriment. Helen
denies that her father had discussed the proposal to make a new will with her by telephone. She understood her father was going to visit Mr Sprott at Bishopdale Law as Mr Sprott was handling their mother’s estate. She had no idea that he was preparing a new will.
[25] Helen’s primary issue with the 2018 Will is that it means she would have no standing as executor. She says this would be contrary to the wishes her father expressed when he had capacity and executed his 2013 Will.
Events following Mr Lawrence’s death
[26] Mr Lawrence died on 23 August 2019. His death was expected, and Helen was kept appraised of his condition by staff at Ilam Lifecare. This enabled her to travel to New Zealand and be with her father for three days before his death. However, Helen was deeply upset by the events surrounding the funeral arrangements. She says she arrived at the funeral director’s on the day of her father’s death to find that his funeral arrangements had already been confirmed by Tony and Michael, and that it was to be a private funeral. She says she was told Tony and Michael had instructed that there was to be no viewing of their father’s body, which further upset her. She also learned the partners of Bishopdale Law were the executors of the estate. Helen says until that point she assumed the 2013 Will was the final will and, as one of the executors, she would have had input into decisions regarding her father’s funeral and related matters.
[27] Michael and Tony’s recollection is somewhat different. They do not accept that they prevented their father’s body from being viewed. They say they simply did not expect anyone to visit, so no arrangements had been made for viewing. They say Helen took no part in their mother’s funeral, and it was reasonable to assume her attitude would be the same for their father’s funeral. However, they had contacted Helen’s daughters five days before the funeral, asking for input into the ceremony. Michael subsequently asked Helen whether she wished to make any alterations to the proposed service or invite additional people to the funeral. They also say Helen and her family had active parts in their father’s funeral mass, held on 27 August 2019. They accept they arranged for a private funeral but given their father was 93 years old, with a small circle of contacts, they believed they had invited all his known contacts
and their own friends to attend. They say the public notice of the funeral required by Helen attracted only an additional number of Rotarians above those originally invited.
[28] Helen, however, was so upset that the funeral arrangements had been made without fully consulting her, that she immediately threatened legal action to prevent the funeral proceeding. In an email sent to Michael on the day their father died she said:
The only option I now have is to challenge the will immediately to determine who is/are the executors. This will put the funeral on hold immediately and dad will go in the freezer for a few months while the legal process goes through to the inevitable conclusion and we three are once again executors as per dad’s only valid will.
[29]Michael’s reply was to say:
The new will is identical in all respects to the previous one except the executor. Dad was deeply distressed that you refused to communicate with your brothers so he knew we clearly could not work together as joint executors as previously proposed.
He then asked for her input into the funeral arrangements and emphasised that her suggestion of deferring the funeral was “humiliating to all and we must seek to resolve this immediately”.
[30] Helen also contacted Mr Sprott at Bishopdale Law on the day her father died, regarding her concerns about the validity of the 2018 Will and her displeasure with the funeral arrangements. She told Mr Sprott that unless the partners of Bishopdale Law stood down as executors, she would be applying for an injunction to stop the funeral from proceeding and “dad is to go in the freezer and the funeral postponed … until the issue [of who should be executor] is determined by the courts.” Helen rejects the characterisation of this as a threat in her affidavit evidence and, in an email sent to the Public Trust in early 2021, she said the executors had “voluntarily resigned”. However, I accept, on the undisputed contents of Helen’s emails to Mr Sprott, that it was untenable for him and the other partner to do anything else but resign when faced with the prospect of the funeral being put on hold indefinitely, if they did not.
[31] Helen then sought advice on the administration of the estate from her lawyers, Wynn Williams. Some correspondence between Wynn Williams and Tony followed,
but no agreement was reached as to who should administer the estate. Tony says Wynn Williams did not respond to his emails of 28 August 2019, and the brothers believed that Helen intended to frustrate the administration of the estate. She responded saying there was an error in the email address they used for her lawyer, Mr Jeremy Johnson, which is why her lawyers did not reply. However, it is clear that the brothers were, by December 2019, corresponding with Ms Anna Needham from that firm.
[32] By late December 2019, Tony emailed Wynn Williams expressing concern that it was now almost four months since the death of their father and there had been no progress made, despite being asked for a proposal. He therefore advised that he had initiated steps to have Public Trust administer the estate. On 17 January 2020, Wynn Williams replied to Tony and Michael saying:
Ms Cameron is not opposed in principle to having the Public Trust appointed as administrator, [but] … the process to appoint the Public Trust is much simpler where there is agreement and consent from all beneficiaries of the estate as to their appointment. We therefore recommend waiting for Ms Cameron’s agreement or otherwise prior to advancing any matters with the Public Trust.
[33] Around 28 January 2020, Michael and Tony had a meeting with Mr Anngow, a senior trustee employed by Public Trust. They provided him with a copy of the 2018 Will and their father’s original death certificate. Mr Anngow confirmed Public Trust could act.
[34] Helen subsequently consented to Public Trust seeking probate for the 2018 Will. She says this is because:
(a)she understood, at that time, that Public Trust was independent; and
(b)it would be the fastest way to finalise matters relating to the distribution of the estate.
She says this belief was reinforced by an email Wynn Williams received from Mr Anngow on 10 March 2020, in which he said he had now received the original will and deed of renunciation and expected that “the Grant should be available within 6 to 8 weeks.”
[35] However, 10 days later, on 20 March 2020, Mr Anngow emailed Wynn Williams saying:
We have noted that with Mr Lawrence’s death certificate reference is made to “neurogenerative disorder 5 years”. In light of the fact that the last Will was made in 2018 we have decided to provide the Court with an affidavit of death.
[36] Shortly after this, on 6 April 2020, Helen’s lawyers wrote to the Public Trust asking that her legal expenses of $10,306.53 be met from her father’s estate. This request was declined and Helen ceased instructing Wynn Williams in July 2020.
[37] In late August, Helen emailed Mr Anngow seeking an update on what was happening with probate. On 3 September 2020, Mr Anngow replied to Helen saying that “based on the information that has been provided, our Probates team have decided that we should not be filing the Will made in 2018 with the Court”. Instead it was proposed to apply for probate of the 2013 Will.
[38] On 15 September 2020, Mr Anngow emailed Helen advising that the executors needed to renounce that role in order for Public Trust to apply for probate for the 2013 Will, noting he had already received deeds of renunciation from both Helen’s brothers. However, a sticking point for Helen was that she still wanted to have her legal expenses met from her father’s estate. In the same email, Public Trust again declined the request, saying “these costs did not represent trustee expenses payable in terms of the will”. Helen replied saying she “should be recompensed for the money I had to spend … defending myself against my brothers’ aggressive actions” and this was a key precondition to her signing a deed renouncing her role as executor under the 2013 Will.
[39] Public Trust then sought to find a way through the disputes between the siblings, resulting in an important email being sent on 23 November 2020. In it Mr Anngow reiterated the Public Trust had decided not to seek a grant of probate in respect of the 2018 Will, given that it was evident Mr Lawrence had some form of impairment, and Dr Cohen was unable to confirm that their father had testamentary capacity when it was made. The email then set out the following proposal which was put with the agreement of Tony and Michael, and which addressed the conditions she had put forward before she would agree to renounce her role as an executor:
(a)agreement has been given to your legal fees of $10,306.53 being met;
(b)we confirm that the Grant is to be sought in regard to the 2013 Will;
(c)agreement has been given to your taking over the paintings (at their valuations) on account of your share in the estate.
The Public Trust then asked whether Helen was prepared to complete the deed of renunciation to enable the application to proceed in regard to the 2013 Will on that basis. On the same day Helen responded saying she would agree to signing the deed of renunciation once the legal fees had been met by her two brothers from their personal accounts.
[40] The Public Trust referred this request back to her two brothers who, on 24 November 2020 rejected the suggestion that they meet Helen’s costs personally (as opposed to from the estate) and asked Public Trust to proceed with the application for probate.
[41] On 8 December 2020, Helen emailed the Public Trust expressing frustration that more time had passed without the application proceeding and advising that she withdrew her consent for the Public Trust to act in the matter of her father’s estate. The following day, the Public Trust responded saying it had “followed up with [her] brothers as to [her] request for reimbursement and they have advised they are not prepared to meet this request.” However, as the Public Trust had already attended to various aspects of estate administration it advised it would proceed with an application for grant in relation to the 2018 Will.
[42] On 23 December 2020 Helen said that she would agree to the compromise which Public Trust had proposed on 23 November 2020 “being the last compromise on the table”. However, the Public Trust did not pass this email on to her brothers, as by then it had already received advice from them that “all offers had been removed from the table”. This was communicated to Helen in an email dated 26 February 2021. Mr Anngow confirmed that the Public Trust had decided to proceed with the application seeking probate in solemn form of the 2018 Will or, in the alternative, of the 2013 Will.
[43] On 8 April 2021, Ms Glenys Talivai, the CEO of the Public Trust, wrote a lengthy letter to Helen in response to Helen’s emails claiming “chaotic performance” by the Public Trust. It commenced by apologising for the delays in progressing her father’s estate saying:
It is clear that we did not meet the timeframes we had advised you (even factoring in the impacts of COVID-19 lockdowns) and should have provided you (and your brothers) with more regular communication. I also acknowledge that there has been conflicting advice provided to you at various times and we should have made our position clear once all information was to hand.
[44] The letter went on to carefully detail why the estate administration had been delayed, saying the initial timeframes were complicated by the fact that Public Trust was not aware testamentary capacity was in doubt and had then received conflicting information as to Mr Lawrence’s testamentary capacity at the time he made his 2018 Will.
[45] Ms Talivai then explained that because Helen and her brothers had asked the Public Trust to administer their father’s estate, it had commenced the process to call in estate assets, a process known as “intermeddling”. Ms Talivai said this was initiated “in good faith so that Public Trust would be in a position to distribute estate assets as soon as probate was granted.” However, as a consequence, the Public Trust could no longer simply renounce administration of the estate.
[46] The letter also pointed out why the estate could not now be progressed as proposed in the email of 23 November 2020. Ms Talivai explained that, at the time, there was agreement from her brothers for Helen’s legal fees to be borne by the estate, but they no longer agreed to that. In those circumstances, Public Trust considered the only realistic option was to apply for probate in solemn form and let the Court decide which will should be admitted to probate and who was to be executor.
[47] The application for probate in solemn form was subsequently filed on 15 April 2021.
Which Will should be the subject of a grant of probate in solemn form?
The parties’ positions
[48] In its application, the Public Trust sought an order granting probate in solemn form for the 2018 Will and an order appointing it executor of that will. Alternatively, it sought a grant of probate for the 2013 Will, together with an appointment of it as executor. However, in a joint memorandum of counsel dated 23 July 2021, counsel for the Public Trust recorded it now only relied on the alternative orders it sought as to the grant of probate of the 2013 Will, which Osborne J noted to be “a formal abandonment of the relief initially sought as to the 2018 Will”.2
[49] Similarly, Tony and Michael advised the Court in a memorandum dated 11 October 2021 that “for the purposes of advancing the proceeding, and without any admission, the first respondent and second respondent agree that the proceeding can be advanced on the basis that it is the 2013 Will which may be admitted to probate”.
[50] Helen has, since the application was filed, maintained that the last valid will of her father was the 2013 Will and that the 2018 Will is invalid on the basis her father did not have testamentary capacity when he signed it.3
The legal principles applying to testamentary capacity
[51] Although there is now no active contest as to which will should be admitted to probate, the parties cannot consent between themselves “to make a will no will”.4 In Re Young, Wilson J stated that the proper course to follow, where there is doubt about testamentary capacity at the time the later will was made, is to seek to admit both wills to probate so the Court can determine which is the last valid will.5
[52] The accepted common law test for testamentary capacity is set out by Cockburn CJ in Banks v Goodfellow as follows:6
2 In his minute dated 23 July 2021.
3 Although she initially authorised the Public Trust to seek probate of the 2018 Will.
4 In the goods of Watts (1837) 1 CURT 594 at 595; 163 ER 208 at 208 and Endean v Endean [2020] NZHC 2575 at [7].
5 Re Young [1968] NZLR 1178 (SC) at 1179.
6 Banks v Goodfellow (1870) LR 5 QB 549 at 565.
It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.
[53] The key elements of testamentary capacity have not changed since Banks v Goodfellow. The will-maker must understand, at the time of execution of the will:7
(a)that they are making a will, and the effect of doing so;
(b)the extent of the estate and therefore the property that can be disposed of in their wills;
(c)those who have moral claims on the estate to which they ought to give effect; and
(d)that this understanding must not be impaired by any disorder of the mind or delusions.
[54] The Court of Appeal in Woodward v Smith, confirmed that testamentary capacity “does not require a sound and disposing mind and memory of the highest degree”.8 The mere fact that a person has a mental impairment of some sort does not mean they lack capacity. Even where an EPOA had been activated in relation to property, a person may be capable of making a testamentary disposition. Section 102 of the Protection of Personal and Property Rights Act 1988 (PPPRA) anticipates that a person can be “mentally incapable” for EPOA purposes, but still have testamentary capacity. In similar vein, s 54 of the PPPRA provides that a person who is subject to a property order is not, by reason only of being subject to that order, deemed incapable of making a testamentary disposition. The real issue is whether, despite having a mental impairment, the will maker had the requisite testamentary capacity.
[55] While the rationality of the will is a factor I can take into account in assessing the issue of capacity, a rational will does not require less capacity than one that appears
7 At 565.
8 Woodward v Smith [2009] NZCA 215 at [19], summarising Banks v Goodfellow.
irrational. As Simon France J said in Woodward v Smith “the key focus is on the rationality of the person making the choices, not the rationality of the choices.”9
[56] In the present case, the 2018 Will is, on its face, a rational will which distributes Mr Lawrence’s assets equally between his three children, just as his 2013 Will had done. Furthermore, given the dispute which arose in 2017 between Helen and her brothers over the exercise of the EPOA to advance funds to the three siblings, there was an objectively sound reason for removing the children as joint trustees and executors and placing an independent person in their place. However, I must be satisfied that Mr Lawrence had an adequate understanding of all those matters when he signed his will.
[57] In that regard, the onus is on the propounder of a disputed will to establish testamentary capacity.10 As was said in Peters v Morris:11
… once a doubt is raised as to testamentary capacity an onus rests on the person propounding the will to satisfy the Court that the testator retained his mental powers to the requisite extent.
[58] Unless I am satisfied, on the balance of probabililties, Mr Lawrence had testamentary capacity at the time of making the 2018 Will, then the 2013 Will, which was made when no issue as to capacity arose, must be the will which is admitted to probate.
[59] Turning to the evidence on Mr Lawrence’s mental capacity, I have clear evidence of a relentless decline in Mr Lawrence’s mental faculties from 2014 onwards, if not earlier. Dr Cohen, who had been Mr Lawrence’s general practitioner for more than a decade, considered it would be unreasonable to expect Mr Lawrence to understand and make decisions about his care and welfare, or his financial affairs, by 31 July 2014.
[60] In November 2016, Harmans considered it was inappropriate that Mr Lawrence act as executor of his sister-in-law’s estate, given he had “lost capacity”.
9 Woodward v Smith HC Napier CIV-2004-441-706, 8 February 2008 at [41].
10 At [103].
11 Peters v Morris CA 99/85, 19 May 1987.
They also considered he was not in a position to act as executor of his wife’s estate in 2017. While Mr Lawrence did, in fact, act as executor when the administration of his late wife’s estate was transferred to Bishopdale Law, that appears to have been allowed out of sheer expediency, so that the cash assets owned by Mrs Lawrence could be liquidated and distributed with minimum delay. The fact that, if he was not left as executor, the three siblings would have to jointly perform the role of executor, may have been another reason why that course was not chosen. It does not, however, assist me on the issue of capacity.
[61] The extent of Mr Lawrence’s deterioration is reflected in his children’s observations from 2017 onward regarding his mental capacity. Some of these are recorded in contemporaneous emails so are not coloured by the benefit of hindsight and the issues in this litigation. In particular, Michael sent an email to various individuals, including Dr Cohen, in late 2017 which describes his father ringing him, convinced he had not replied to his granddaughter Sarah in Australia, when Michael had just typed out a letter to Sarah dictated by his father. Indeed, Michael said he had to “prompt him or make suggestions, otherwise the letter would not have been written at all.” Mr Lawrence also told Michael his computer was too complicated and was not working, although Michael confirmed there was nothing wrong with it. Michael said “Dad had a sudden need for a list of all the people on his contact list (it’s on his desktop, kindly set up by Chris Stevens). We printed it off for him, but the hard truth is that if Dad actually succeeds in starting a new email, most of what he writes is gibberish”. He described his father as looking “terrible” and, “[w]hen we tried to explain things to him he just couldn’t process any of it.”
[62] This evidence is supported by Helen’s account of his behaviour in the last two years of his life. For example, when she was undergoing cancer treatment between September 2017 to April 2018, her father repeatedly rang her (up to three times a day) asking her to visit him, even though she explained her immune system was completely compromised and she could not fly to New Zealand. He also suggested he could visit her, even though she made it clear she would be unable to look after him. At one point he turned up at the front desk at Ilam Lifecare, dressed in his jacket and wanting to catch a taxi to the airport. He had no appreciation of the impossibility of him travelling. When Helen visited her father in April 2018, she says
there was a marked deterioration in his speech and comprehension. For example, when they were having lunch together she noticed he was not eating much. She asked him what he liked best on his plate and he could not name the items of food, such as fish or potato.
[63] Those observations are supported by the cognitive assessment which Dr Cohen undertook in March 2018. He categorised Mr Lawrence as suffering from senile dementia, noting his score on the Montreal Cognitive Assessment was only 9 out of 30, when normal functioning is indicated by a score of 26 or more.
[64] In these circumstances, there would need to be positive evidence that Mr Lawrence had the requisite testamentary capacity as at the date he executed the 2018 Will. On the information before the Court, I do not consider that has been established. This is, in part, a consequence of no party actively promoting the 2018 Will and therefore not calling Ms Fell to give more detailed evidence about why she was satisfied that Mr Lawrence had testamentary capacity.
[65] Without any supplementary evidence, I am simply left with Ms Fell’s file note of the meeting with Mr Lawrence and his son, and it does not close off the questions that arise about testamentary capacity. In particular, I note that Ms Fell knew the EPOA for Mr Lawrence had been activated four years prior, and her firm did not then consider he had capacity to act as executor on his wife’s and sister-in-law’s estates. In those circumstances, some level of inquiry was warranted into testamentary capacity and that is not evident from the file note. Although the recent dispute between his children may well have been the motivating factor for the change in the will, it is not clear that Mr Lawrence himself says this. Furthermore, while Ms Fell read the will to Mr Lawrence and explained what each clause meant, that, without more, is insufficient to establish that he adequately understood the provisions of the will. It would have assisted if I had evidence that he had articulated to her what the will did and why.
[66] In saying that, I acknowledge Ms Fell may well be right when she said she did not have any concerns about Ms Lawrence’s mental capacity. I simply do not have the benefit of her reasons for reaching those conclusions because she was not called
as a witness and, for the purposes of this application, the evidence of the file note is insufficient to satisfy me that Mr Lawrence possessed testamentary capacity.
[67] That leaves the 2013 Will as the last valid will. No injustice is caused by that decision. It is made on identical terms to the 2018 Will, save for the identity of the executors. On that point, the practical effect is the same for each will, given all parties accept they cannot reasonably work together, and an independent executor needs to be appointed.
[68] That then leads to the next issue in dispute. Who should be appointed as executor to administer the estate?
Who should be appointed as executor?
[69] The contest in respect of this issue is whether the Public Trust should continue to administer the estate or whether, as Helen proposes, it is passed to another independent person or entity. In this regard, she proposes the appointment of Mr Bryce Williams, a partner in the law firm Gibson Sheat, who is based in that firm’s Lower Hutt offices. He leads Gibson Sheat’s estates and elder law team and is experienced in acting as an executor. He has provided an affidavit confirming his willingness to act if appointed, to collect in the estate assets, attend to any tax and other commitments of the estate, then distribute the estate in accordance with the will. His hourly rate is $495, plus office expenses, GST and disbursements, although he notes some estate administration tasks would be carried out by more junior solicitors and/or legal executives at lower hourly rates.
Michael and Tony’s submissions
[70] Michael and Tony, however, do not support the appointment of Mr Williams, because they see no need to appoint a new executor when the Public Trust has been administering the estate to date, and the estate administration will be straightforward once probate is granted. They point out that the Public Trust is a well recognised organisation specialising in the administration of estates. It has been acting in the estate under s 82 of the Public Trust Act 2001. It has already intermeddled in the estate with the consent of all respondents and has undertaken a number of steps in the
administration of the estate. These include receiving and investing the funds, closing bank accounts, and paying funeral expenses and tax. Furthermore, the Public Trust has always conducted itself in a courteous fashion, apologising for the delay and setting out in detail the circumstances which have caused it.
[71] There is, in the brothers’ submission, no specific issue going forward, identified by Helen, which suggests the Public Trust should not be appointed. There is no issue about distribution, as the estate is to be divided equally between the respondents, nor are there any claims against the estate. Finally, there is no suggestion the Public Trust has acted inappropriately towards Helen.
Helen’s submissions
[72] Helen, however, has a number of concerns about the Public Trust’s actions to date which reflect on its suitability to be appointed. These are that the Public Trust has:
(a)failed to give adequate consideration to Mr Lawrence’s lack of testamentary capacity at the time of making the 2018 Will, despite having a copy of his death certificate, noting his neurogenerative disease, from the outset;
(b)Public Trust has been inconsistent in its approach, initially pursuing probate of the 2018 Will (a task Public Trust indicated would take six to eight weeks), then pursuing probate of the 2013 Will and now pursuing probate of the 2018 Will;
(c)relied on Ms Fell’s file note which is in stark contrast to her own previous statements about Mr Lawrence’s capacity, the medical evidence and the death certificate confirming Mr Lawrence had a neurodegenerative disorder for five years preceding his death;
(d)claimed it was unaware of the capacity issues in July 2020 despite receiving the death certificate at the beginning of 2020;
(e)applied for probate of the 2018 Will with the effect that Helen would have no standing as her father’s executor, contrary to his wishes in the 2013 Will;
(f)failed to provide adequate responses to Helen’s questions about the estate’s assets and the total ongoing fees being incurred by the estate, a sum which she considers is excessive; and
(g)unreasonably delayed in seeking a grant of probate for their father’s estate and, as a result of such delay, has increased its management fees from the proceeds of the estate thereby eroding the overall value of the estate.
[73] Ms McKeown submits, on behalf of Helen, that the executor should have a constructive relationship with the beneficiaries. However, if the Public Trust is appointed, “the present animosity and tension will likely remain”.
[74] In support of Mr Williams being preferred to the Public Trust, Ms McKeown submits that Public Trust’s existing knowledge and activity on the estate is of no great advantage in the administration phase. The estate is not complex, and Mr Williams should be able to come up to speed quickly. Mr Williams has confirmed his willingness and ability to act, and he will be able to ensure the efficient administration of the estate to the advantage of all beneficiaries.
[75] While Tony’s affidavit says the Public Trust has advised its rates are a maximum of $240 per hour, with most work being undertaken by more junior staff at lesser rates, Ms McKeown notes that Public Trust has also been charging a management fee of 0.4 per cent on the $803,000 in the Public Trust managed fund investment (cash fund) and a five per cent income commission fee on the interest earned on the $500,000 which is on term deposit. While Michael and Tony assert that the management fees and commissions are not significant sums and would not have continued had Helen not frustrated administration of the estate, she says the amounts are material and must be factored in if the Court is making costs comparisons.
[76] Finally, Ms McKeown points out there is a dispute indicated by Tony and Michael over items from the estate which they allege have been removed by Helen. She says Mr Williams would be better placed to impartially investigate such allegations (if they need to be investigated), free from the “animosity” which presently exists between Public Trust and Helen. In support of this submission, Ms McKeown refers to the decision in Hall v Radich-Chayton, where distrust of a professional executor was a factor in preferring appointment of an alternative proposed professional trustee.12
[77] While she acknowledges that the Public Trust has an office based in Christchurch, she says that is not a reason to prefer the Public Trust over Mr Williams. Once it is determined what is to happen to the chattels, Tony could simply send them straight to the recipient without the professional executor needing to take them in.
The legal principles applying
[78] Although Helen has pressed for the 2013 Will to be declared the last valid will of Mr Lawrence, all the siblings acknowledge the Court needs to appoint an independent executor/administrator in light of the animosity and distrust between them. They also agree the Court has the power to do that under s 6(2) of the Administration Act 1969 which provides:
(2)Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—
(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:
…
[79] In the circumstances arising, I need to be satisfied that by reason of “special circumstances” it is:
12 Hall v Radich-Chayton [2020] NZHC 409, at [53].
(a)necessary or expedient to grant administration to some other person than the named executors; and
(b)whether it is more expedient to grant the application to the Public Trust or to Mr Williams.
[80] In determining what is meant by the term “expedient” both parties referred me to the discussion in Crick v McElrea.13 There Associate Judge Osborne (as he was then) observed:14
The term “expedient” imports considerations of suitability, practicality and efficiency. In the context of estate administration the use of the term “expedient” therefore demands an overarching question – will removal of the administrator be a suitable, practical and efficient means of advancing the interests of the estate and of its beneficiaries?
[81] I am satisfied, having regard to the tenor of the communications between Helen on the one hand and Michael and Tony on other, that relationships have so broken down between them, it would be difficult, if not impossible, for them to work together on the administration of the estate. It is, therefore, both necessary and expedient for an alternate executor to be appointed.
[82] That leaves the question of whether it is more expedient to appoint the Public Trust which has current carriage of the estate administration, notwithstanding Helen’s reservations, or whether the Court should transfer the administration of the estate to Mr Williams. That assessment involves an objective analysis of Helen’s concerns, including her stated “loss of confidence” in the Public Trust, to decide whether they would be an impediment to the efficient administration of the estate.
[83] Accordingly, I go on to consider the key points of Helen’s objections to the Public Trust continuing which can be summarised as:
(a)it has unreasonably delayed to date;
13 Crick v McElrea [2012] NZHC 1290.
14 At [18].
(b)she has lost confidence in the Public Trust due to its “inconsistent” approach to which will should be admitted to probate;
(c)its cost structures are not advantageous and its fees are excessive; and
(d)it is not truly independent, which may impede the future administration of the estate.
Has there been unreasonable delay?
[84] When the Public Trust was first approached by Tony and Michael in early 2020, it was with a view to administering the 2018 Will. However, the Public Trust required the consent of all three siblings before it would agree to take on the estate administration. Helen provided that authority in February 2020, and Mr Anngow reported on 10 March 2020 that he had received the original will from Harmans the week before and the deed of renunciation from the existing executors.
[85] It was on 10 March that Mr Anngow gave an indication that the grant should be available within six to eight weeks. On 20 March, the Public Trust noted the death certificate referred to a neurodegenerative disorder. However, based on discussions, including with the legal executive who took the will instructions, the Public Trust was prepared to proceed with the application for probate of the 2018 Will. In the interim, Helen was corresponding with Public Trust through her lawyers advising she wanted her legal fees reimbursed from the estate.
[86] There was then a significant delay before the next communication from the Public Trust on 3 September 2020. In that time, the Public Trust had received conflicting information as to the extent of Mr Lawrence’s testamentary capacity and considered it would be “in the beneficiaries … best interests” to seek probate for the 2013 Will. However, that required a deed of renunciation to be completed by all three siblings.
[87] From that point forward, the delays, in my view, were largely caused by the inability of the beneficiaries to present a united position to the Public Trust. Following receipt of the 3 September email, Helen said she would only provide her deed of
renunciation on conditions, which included reimbursement of her legal fees, despite the Public Trust having already advised it did not consider them estate expenses. The brothers initially declined to agree to those terms. However, by 23 November 2020, they were prepared to agree to Helen’s conditions, albeit their understanding was that the legal fees would be met from the estate (thus effectively they would pay two-thirds of the fees). Helen, however, then insisted the legal fees were to be paid by her brothers personally, and that continued the deadlock. While on 22 December, Helen emailed the Public Trust saying she was prepared to compromise and accept the offer as outlined on 23 November, the brothers had already advised the Public Trust that offer was off the table.
[88] That remained their position and was still the position by the time Ms Talivai wrote a detailed letter to Helen explaining what the Public Trust proposed to do in the circumstances. The letter goes on to explain that given the impasse, the Public Trust proposed to file an application for probate in solemn form placing both wills before the Court, while Public Trust would seek to be appointed as executor Ms Talavai’s letter noted that:
Should you or your brothers wish to challenge Public Trust being the Executor, you will need to advise the Court. In addition, you will need to let the Court know who you would want to be Executor of your father’s estate. This is likely to extend the process and will cost the estate more money. However, if this is an option you wish to pursue, please be reassured that Public Trust will respect whatever decision the Court makes on this matter.
[89] The application was filed shortly after this, but, because all parties sought to be heard on the matter and it went to hearing, a further year has elapsed.
[90] Looked at objectively, the only period where delay can be attributed to the Public Trust is March to September 2020, where the Public Trust took considerable time to decide what its stance should be on the issue of testamentary capacity. However, this was not entirely surprising. The COVID-19 lockdown accounted for some of the delay. Time would also have been needed to make contact with Bishopdale Law, Dr Cohen and Harmans. The Public Trust also had to consider that a change to propounding the 2013 Will differed from the joint instructions it had from the beneficiaries, and it could not proceed without them renouncing their role as executors.
[91] However, all the delays following the advice of 3 September 2020, were as a result of the divergent position of the parties and, in particular, Helen’s insistence that her legal fees be met first from the estate, and then her two brothers, before she would renounce as executor and allow the Public Trust to apply for probate in respect of the 2013 Will. That is not something the Public Trust had control over. There were inevitable delays as the Court process unfolded.
[92]While Helen is critical of the Public Trust for failing to promptly pass on her
22 December 2020 offer to settle on the terms proposed in Public Trust’s 23 November email, that overlooks the fact that the Public Trust was not acting for them, but was taking action on behalf of the estate. It already had clear instructions that the brothers would not agree to her legal fees being paid, and nothing was lost by the failure to refer this proposal to Michael and Tony until February 2021. Mr Anngow, in his 26 February 2021 email to Helen says that, while they were “prepared to provide an acknowledgment for the Court to the 2013 Will being probated
… they were very clear that they were not prepared to consider any compromises [in respect of her legal fees].
[93] In summary, I am satisfied Helen’s criticisms of the Public Trust for delay are largely unwarranted. Any delay caused by the Public Trust was minimal when compared with the delay caused by the inability of the parties to compromise (and in particular, Helen refusing to renounce her executorship of the 2013 Will without her legal fees being paid) and the consequent need to hear these proceedings.
Has the Public Trust been inconsistent, causing a loss of confidence?
[94] The Public Trust has changed its position on which of the two wills should be admitted to probate. However, in light of the history which has already been set out in this judgment, that is unsurprising. As the Public Trust said, it was not aware when it agreed to act that there was an issue as to testamentary capacity.
[95] I accept the Public Trust did not immediately identify that the death certificate raised the issue of dementia. However, it did, in due course, make enquiries about that. It seems the more it learnt, the more it realised there was a genuine dispute as to testamentary capacity which the Public Trust was unaware of when it provided its
estimate of probate being granted in six to eight weeks. The totality of that information gave the Public Trust good reason to think it was preferable to seek probate in respect of the 2013 Will. However, that required the executors to renounce, something Helen would not do unless her conditions were met. The Public Trust did not then simply revert to seeking probate in respect of the 2018 Will, as Helen states. It sought probate in respect of either will, based on the Court’s findings. That was a reasonable stance to take in light of the equivocal evidence as to testamentary capacity and the refusal of the three siblings to co-operate on what Public Trust saw as the most expedient course, which would have been to seek probate for the 2013 Will.
[96] In short, the Public Trust’s change of stance on which will to seek a grant of probate for was entirely explicable in all the circumstances.
The Public Trust’s costs
[97] Helen also complains about the Public Trust’s costs, claiming their fees are excessive and that she was not fully advised of the management fees and commissions they took for investing the funds.
[98] In response to the claims regarding the Public Trust’s costs, the Public Trust confirms it has undertaken a full fees review. It has agreed that the Public Trust would personally cover the cost to prepare and file the application for probate in solemn form, but not the costs incurred in participating in the application, should any party choose to do so. This was advised to Helen in April 2021.
[99] The Public Trust has also agreed to a deduction of $4,249.25 to its charges for the estate administration. It confirms that the majority of the remaining work would be:
Relatively straightforward and would generally be undertaken by either an associate or senior trustee (so between $200-$240 p/h.) The Principal Trustee (at $280 p/h) will need to sign off on the distribution of the estate, however again that should be relatively procedural and not exceed an hour of time.
However, those indications as to charges are explained to be “entirely dependent on no further complications arising subsequent to Public Trust’s appointment as Executor (should that ultimately be decided by the Court).”
[100] The Public Trust also explains that its fees are publicly available on its website and this was communicated to Helen by way of email in response to a query from her on 10 December 2020.
[101] I am satisfied nothing in the information provided supports Helen’s belief that the Public Trust’s charges are excessive or unreasonable. While management fees are continuing to accrue in respect of the investments, that is solely because of the failure of the parties to agree on the way forward. That cannot be attributed to the Public Trust. I also note that all legal fees which are accrued in the administration of the estate can be subject to review pursuant to s 160 and s 132(2) of the Lawyers and Conveyancers Act 2006, should there be any reason to question the reasonableness of the charges.
[102] I am satisfied there is no foundation to Helen’s concern about the fees the Public Trust is charging.
Will the Public Trust be impartial?
[103] An underlying theme in Helen’s correspondence and evidence is that she initially believed the Public Trust was “independent”, but she now considers there is “animosity” which means it is no longer expedient to appoint the Public Trust as executor. However, when I asked what exactly had caused Helen’s concerns with the Public Trust, Ms McKeown said it was her experience of “prior delays” and a lack of assurance as to there being no future delays, rather than evidence of partiality. Ms McKeown submitted that, regardless of whether or not Public Trust has actively caused distrust, suspicion and conflict, the fact that there is now distrust of Public Trust by Helen is sufficient to justify the appointment of an entirely neutral person, being Mr Williams.
[104] In support, Ms McKeown referred to the decision in Hall v Radich-Chaytor, where Grice J said:15 “if distrust, suspicion and conflict can be avoided in the administration of this Estate it should be.” In that case, the Court was required to select an executor where both proposed appointees (Perpetual Trustee and Trustees
15 Hall v Radich-Chaytor, above n 12, at [97].
Executors Ltd) were well qualified and experienced. The distinguishing feature between the two was the deceased’s widow, one of the two estate beneficiaries, distrusted Perpetual Trustee, because of a perceived conflict of interest, and preferred Trustees Executors Ltd (TEL).
[105] The Court gave weight to the widow’s views, finding that there was “little doubt that the hostility and tension (whatever the rights and wrongs between the parties are) is likely to have a bearing on the efficiency of the administration of the Estate.”16
[106] However, I am satisfied that that Radich–Chaytor can be distinguished from the present case. There was no existing administrator as here, where the Public Trust took up on the role at the request of the beneficiaries. Furthermore, the estate in Radich-Chaytor was extensive, comprising farm lands, investments, and residential property and was estimated to be in the vicinity of $15 to $30M, depending on how it was managed and valued. These needed to be managed on an ongoing basis, given the terms of the will. Administration of the estate would therefore be demanding and require professional input on an ongoing basis. While Grice J observed that there was no suggestion either of the trustee corporations would in fact be hostile or partisan to either party in the proceedings, the distrust by the widow towards one of the potential trustees was submitted to be an impediment to the efficient administration of the estate. The Judge agreed, saying it was important for the trustee corporation and manager appointment to have a constructive relationship with all the beneficiaries, and that played a significant part in preferring the appointment of TEL over Perpetual.
[107] However, I consider this is a very different case. Public Trust has already taken steps in the administration of the estate and there is no ongoing or active management of the assets required, as was the case in Radich-Chaytor, which would require a good working relationship with the beneficiaries.
[108] I accept this also means it would not be difficult for Mr Williams to take over the assets and complete the administration of the estate. However, there would inevitably be some cost and delay in doing that. In saying that, I acknowledge that Public Trust has not yet completed anti-money laundering requirements with the
16 At [70].
beneficiaries, so that is a step which must be taken regardless of who is appointed, but does not change the position that there will be at least some transitional cost in shifting the administration of the estate to Mr Williams’ firm.
[109] In addition, the assets of the estate are primarily investments. There is no need to seek the input of the beneficiaries into the administration and distribution of these assets. They simply need to be cashed up and distributed. While the brothers have raised allegations of Helen taking chattels without authority, it seems those are of minor value, and Mr Clay considered it unlikely the brothers would wish to hold up administration of the estate over those disputes. If indeed the executor does have to deal with such matters, then I consider an executor with a presence in Christchurch would be better placed to deal with them. There is no suggestion that Public Trust would be partisan in addressing such disputes because of bias or conflict of interest.
[110] In all the circumstances, I am not satisfied that Helen’s loss of confidence in the Public Trust is a sufficient reason to appoint a different executor when there are other factors which clearly make it expedient for the Public Trust to continue in the role of administering the estate. As the Public Trust says “the remaining administration will be straightforward”, as the primary issue was the difficulty in obtaining a grant of probate. As that has been resolved with this decision, finalisation of the estate should occur quickly and efficiently.
[111]Accordingly, I appoint the Public Trust to be executor of the 2013 Will.
Admissibility of documents
[112] There is an additional issue which was raised shortly before the hearing and which needs determination. On 22 February 2022, counsel for the applicant filed a memorandum in accordance with directions given at the pre-trial conference on 10 February 2022. Annexed to that memorandum were four emails which counsel noted were not included in the common bundle, and leave was sought for those documents to be admitted as evidence under either s 9(1)(b) or alternatively s 130(3) of the Evidence Act 2006.
[113] As it transpires, there was no dispute over the admission of two of the emails and, in a minute dated 28 February 2022, I admitted them as evidence under s 9 of the Evidence Act. While Michael and Tony did not object to the other two documents being admitted to evidence, Helen’s initial stance was to oppose their admission on the grounds that the documents were privileged pursuant to s 57 Evidence Act 2006.
[114] By the hearing, her position had altered and Ms McKeown advised that Helen would abide the decision of the Court. In the circumstances, it is necessary for me to rule on the admissibility of those two documents.
[115]The documents are:
(a)an email dated 23 November 2020 from Helen, replying to the Public Trust proposal of 23 November 2020; and
(b)an email exchange dated 9 December 2020, which also includes an email dated 8 December 2020, in which the third respondent withdrew her consent for the Public Trust to act on the estate.
[116] As already noted, Helen initially claimed privilege in respect of these two documents under s 57 of the Evidence Act. That section protects the confidentiality of settlement negotiations in the context of civil proceedings. However, such privilege can be waived with the consent of all privilege holders. Here, it is Helen who disclosed the Public Trust’s offer of 23 November 2020 in her affidavit of 8 November 2021. She has also disclosed her later email offering to accept the terms proposed on 23 November 2020 and is critical of the Public Trust for not passing this response on properly to her two brothers.
[117] In my view there was a waiver of without prejudice privilege by Helen when she attached the Public Trust proposal of 23 November 2020 to her affidavit. The other parties can also be taken as having similarly waived privilege, having openly addressed the attempts to settle the litigation in their evidence and in submissions.
[118] I do not consider that, having introduced part of the correspondence on the attempts to settle the matter in late 2020 and early 2021, that it is appropriate to omit one document on the basis it is privileged. The parties have clearly waived privilege on their attempts to settle the matter, all in an attempt to show that they had tried to be constructive. It is only proper that the full history of that is before the Court.
[119] Accordingly, I am satisfied that it was appropriate to admit these two documents under s 130 of the Evidence Act 2006 and make an order accordingly.
Result
[120]I make a grant of probate in solemn form of the will dated 11 October 2013.
[121]The Public Trust is appointed as executor of the will dated 11 October 2013.
Costs
[122]The Public Trust’s costs will be borne by the estate, as is the usual case.
[123] In respect of the parties’ costs, I observed that, following the brothers’ concession as to which will should be admitted to probate, the only disputed issue was the identity of the executor. On that issue Helen has failed. My preliminary view is that costs should lie where they fall to that point, and Helen should pay 2B costs to the brothers for all steps taken after that concession was made.
[124] Should the parties be unable to agree on costs pursuant to that guidance, costs memoranda are to be filed as follows:
(a)any application for costs is to be made within 20 working days of the date of this decision;
(b)any response to that application is to be filed within a further 10 working days;
(c)any memorandum in reply is to be filed within five working days; and
(d)submissions are to be no more than five pages in length.
[125] Costs will then be determined on the papers unless I need to hear from the parties.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt Saunders & Co., Christchurch
Duncan Cotterill, Wellington
Copy To:
Mr K W Clay, Barrister, Christchurch
3
4
1