Public Trust v Lourie - [2020] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000540

[2020] NZHC 1691

UNDER Part 5 and Part 7 of the High Court Rules 2016

BETWEEN

PUBLIC TRUST as executor of the Estate of ELIZABETH CELIA PURVES

Plaintiff

AND

JOHN LOURIE

First Defendant

GERALDINE TYLER-SMITH
Second Defendant

ALEXANDRA STROTH

Third Defendant

MICHAEL SPRINGER
Fourth Defendant

SALVATION ARMY
Fifth Defendant

HEATHER GROUDEN
Sixth Defendant

WICKHAM PACK

Seventh Defendant

CATRIONA GOWER
Eighth Defendant

MAURICE WHITE NATIVE FOREST TRUST

Ninth Defendant

PILLARS INCORPORATED (KA POU WHAKAHOU)

Tenth Defendant

PUBLIC TRUST v LOURIE [2020] NZHC 1691 [14 July 2020]

ASSOCIATED NEW ZEALAND MYALGIC ENCEPHALOPATHY SOCIETY INCORPORATED
Eleventh Defendant

AMNESTY INTERNATIONAL NEW ZEALAND
Twelfth Defendant

On the Papers

Counsel:

G Traves and A Finnie for the Plaintiff J H Stevens for the Fifth Defendant

T J Hutchison for the Eleventh Defendant M M Bell for the Estate of Kenneth Fea

Judgment:

14 July 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 14 July 2020 at 4.00 pm
pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
Public Trust, Christchurch Bell Gully, Wellington

Van Aart Sycamore Lawyers, Dunedin Corcoran French, Christchurch

Introduction

[1] Public Trust applies for a grant of probate in solemn form of the last will of Elizabeth Celia Purves (the deceased) who died on 16 February 2018.1 The will for which probate is sought was executed on 17 November 2014 (the will).

[2] In late January 2018 the deceased gave instructions to Public Trust for the drafting of a new will (the draft will) which involved significant changes from the will.

[3] The draft will was sent to the deceased for her consideration and she requested some amendments to it. These amendments were made, and the amended draft will was sent to the deceased by email on 5 February 2018.

[4] The draft will was never signed by the deceased, and she died following the apparent intentional ingestion of medication. Her death is a matter subject to a future coronial finding.

Background

The will

[5] On being notified of the deceased’s death, Public Trust made extensive enquiries and established that the will is the last known executed will of the deceased. The will provides that her property situated at Little River, together with the usual fixtures and chattels, be gifted free of any encumbrance to Kenneth Hugh Fea.

[6] Mr Fea and the deceased entered into a relationship in or around 1994. This relationship continued up until the deceased’s death, notwithstanding that Mr Fea suffered from dementia in the last years of his life and was put into care in late 2015. The deceased and Mr Fea lived together between 1994 and 2015 except for periods of time when the deceased travelled overseas, although they would also travel overseas together from time to time. Mr Fea died on 21 March 2019.

1 High Court Rules 2016, r 27.6.

[7] In addition to the bequest to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 1691
Decision Date: 14 July 2020

CaseChat Overview and Summary

The High Court of New Zealand considered the application of the Public Trust as executor of the estate of Elizabeth Celia Purves for a grant of probate in solemn form of the deceased's last will. The will, dated 17 November 2014, bequeathed the deceased's property at Little River to Kenneth Hugh Fea, and various other bequests to friends and charities. The deceased had drafted a new will in late January 2018, which did not include any bequest to Mr Fea, but this draft was not signed before her death on 16 February 2018. The court had to determine whether the 2014 will should be granted probate in solemn form, or whether a declaration should be made regarding the validity of the unexecuted draft will. The court found that there was a tenable issue concerning the deceased’s testamentary capacity at the time she provided instructions for the draft will, but ultimately decided that the 2014 will should be granted probate in solemn form. The court noted that no party opposed the application and that there was no evidence of undue influence or challenge to the will’s validity.

The legal issues before the court included whether the deceased had testamentary capacity when she instructed Public Trust to draft the new will, and whether the 2014 will or the unexecuted draft will should be granted probate. The court examined the deceased's mental health history, provided by her medical records, and found that there was a tenable issue regarding her capacity at the time she drafted the new will. However, the court determined that the evidence did not establish definitively that the deceased lacked testamentary capacity at the time she executed the 2014 will. The court also noted that the 2014 will's provisions aligned more closely with the deceased's legal obligations to Mr Fea under the Property (Relationships) Act 1976. Given that the application for probate was not opposed and there were no challenges to the validity of the 2014 will, the court found that the requisite onus of proof had been met by the Public Trust.

The court granted the Public Trust's application for probate in solemn form of the 2014 will, stating that the will was the last known executed will of the deceased. The court ordered that probate issue to the Public Trust and that the reasonable legal costs of the Public Trust be met from the estate of Elizabeth Celia Purves. The court’s decision was based on the absence of opposition to the application, the alignment of the 2014 will with the deceased’s legal obligations, and the lack of evidence that the deceased lacked testamentary capacity when she executed the 2014 will. The court's ruling ensures that the 2014 will is recognised as the valid will of the deceased, facilitating the distribution of her estate according to her wishes as expressed in that will.

Orders