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 judgment is the appropriate procedure.

[7]    Rule 11.9 of the High Court Rules 2016 states that a Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed. Recalling a judgment is a “serious step” to be taken only in reasonably well identified situations.4 The leading case which identifies when a judgment may be recalled is Horowhenua County v Nash (No 2). Wild CJ observed:5

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[8]    The first two situations clearly do not apply in this case. However, I consider this is a case justifying recall on the basis of a “very special reason”.

[9]    The Public Trust was mistaken in seeking probate on the basis that it retained the original will. The affidavit evidence in support of grant had annexed a copy of the certified copy but in granting probate it was not brought to the Court’s attention, because the Public Trust had not then appreciated, that the original had been lost. Recalling and reissuing the judgment to reflect this is appropriate.

Outcome

[10]   I recall my judgment dated 26 April 2024 and reissue it in a form reflecting that probate is granted in circumstances of the original will having been lost.6

Anderson J

4      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR11.09.01(1)].

5      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

6      Public Trust v Niemann [2024] NZHC 934.