Public Trust v Niemann - [2024] NZHC 2223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002268

[2024] NZHC 2223

IN THE MATTER of the Estate of Rose Laura Fauser of Auckland, Retired (Deceased)

BETWEEN

PUBLIC TRUST

Plaintiff

AND

RAELENE NIEMANN

First Defendant

PHOEBE LILLIAN URLICH
Second Defendant

ALONA MAUD COVICH

Third Defendant

PUBLIC TRUST, as Executor of the Estate of ALAN RAYMOND FAUSER

Fourth Defendant

Hearing: On the papers

Counsel:

G M Cairns for Plaintiff

A W Johnson for Defendants

Judgment:

9 August 2024

JUDGMENT OF ANDERSON J

[Recall]

This judgment was delivered by me on 9 August 2024 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..
Registrar/Deputy Registrar

Solicitors:Thomas Dewar Sziranyi Letts, Lower Hutt Martelli McKegg, Auckland

PUBLIC TRUST v NIEMANN [2024] NZHC 2223 [9 August 2024]

What has happened

[1] On 26 April 2024 I made an order granting probate in solemn form of the last will of Rose Laura Fauser who died on 11 September 2021.1 I was satisfied that Mrs Fauser had capacity and the will had otherwise been properly made. My judgment order has not been sealed.

[2] Subsequent to issuing my judgment the Public Trust discovered that the original will dated 6 April 2016 had been lost in the course of handling by the Public Trust.

[3] The circumstances are outlined in an affidavit of Adrienne Jessie French, which also summarises attendances carried out to locate the will. The original will was retained in the Public Trust’s storage facility from the time it was executed until after the death of the deceased. Accordingly, no presumption of destruction applies.

[4] Ms French deposes that the original will likely came to be lost in the relocation of the Public Trust’s offices in 2022. She annexes a copy of the original will that was certified as a true copy on 17 September 2021, six days after the death of Mrs Fauser. A copy of that same certified copy was annexed as Exhibit A to the affirmation of Huaqing Zhang affirmed on 8 September 2023 in support of the application for the grant of probate.

What to do about it

[5] Where the former existence, due execution, and loss of a will have been established, its contents or substance may be proved by secondary evidence.2 These matters are plainly established in this case. The appropriate course where the original will has been proved by secondary evidence, is to grant probate of the will in terms that recognise that evidence.3

1      Public Trust v Niemann [2024] NZHC 934.
2      Re Estate of Hauraki HC Auckland CIV-2005-404-3591, 27 July 2005 at [8] quoting Gordon Cain and James Curran Dobbie’s Probate and Administration Practice (4th ed, LexisNexis, Wellington, 1986) at [100].
3      See Re Estate of Hauraki, above n 2.

[6] On identifying that the original will had been lost, the Public Trust requested I amend my earlier judgment to recognise this development. In my view, recall of my earlier…

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.

Keep reading for free

Create a free CaseChat account to read Public Trust v Niemann and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 2223
Decision Date: 9 August 2024

CaseChat Overview and Summary

In the matter of the Estate of Rose Laura Fauser, the Public Trust sought to recall a previous judgment granting probate of the deceased's will. The original will had been lost during the relocation of the Public Trust's offices. The Public Trust requested the Court to amend the earlier judgment to reflect the loss of the will. The central issue before the Court was whether it was appropriate to recall the earlier judgment and reissue it to reflect the circumstances of the lost will.

The Court considered whether there was a "very special reason" justifying the recall of the judgment. The Court found that the Public Trust had been mistaken in seeking probate on the basis that it retained the original will. The affidavit evidence in support of the grant of probate had annexed a copy of the certified copy but this was not brought to the Court's attention as the Public Trust had not appreciated that the original will had been lost. The Court concluded that recalling and reissuing the judgment to reflect the loss of the will was appropriate as it was a case justifying recall on the basis of a "very special reason."

The Court recalled the earlier judgment and reissued it to reflect that probate was granted in the circumstances of the original will having been lost. The Court noted that recalling a judgment was a serious step, but in this case, it was justified to ensure justice was served. The Court granted the Public Trust's request to recall and reissue the judgment in light of the new circumstances.

Orders