Public Trust v Nirza

[2024] NZHC 3801

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2024-488-73

[2024] NZHC 3801

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

an application to validate a draft will of the late KEVIN ROSS POMEROY

BETWEEN

PUBLIC TRUST

Applicant

AND

MARTA FULLO NIRZA

Respondent

Hearing:	12 December 2024
Appearances:	G M Cairns for Applicant via VMR P H Biddle for Respondent
Judgment:	12 December 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 12 December 2024 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt Henderson Reeves, Whangārei

PUBLIC TRUST v NIRZA [2024] NZHC 3801 [12 December 2024]

[1]                 This is an application by Public Trust for orders validating a will of the deceased, Kevin Ross Pomeroy, who died on 18 February 2023.

[2]                 The application is not opposed, so it was heard in a formal proof hearing. In particular, the persons affected by the application are the deceased’s two sons and his wife. The two sons provided written consent confirming that they are aware of the application and consent to the Court orders that are sought. Ms Nirza, the deceased’s wife, abides by the decision of the Court.

Background

[3]                 The deceased’s last known executed will was dated 1  November  2010  (2010 Will), which appointed Public Trust as his executor and trustee. The 2010 Will was not made in contemplation of marriage.

[4]                 The deceased married Marta Nirza on 22 June 2012 which had the effect of revoking the 2010 Will. A contracting out agreement was already in place between the deceased and Ms Nirza at the time they married.

[5]                 On 29 November 2022, the deceased went to Public Trust’s customer centre in Whangārei. He met with a senior trustee  and  gave  instructions  to  change  the 2010 Will. A new will was prepared in accordance with those instructions and approved by Public Trust’s in-house legal team on 31 January 2023.

[6]                 On 9 February 2023, it was posted to the deceased requesting that he confirm certain highlighted clauses were to his satisfaction and asking him to make an appointment to execute it.

[7]                 The deceased died unexpectedly on 18 February 2023, from complications of an unplanned surgery. As he had not signed the new will and the 2010 Will was revoked when he married, the deceased died intestate.

Legal principles

Formal requirements of wills

[8]Section 8 of the Wills Act 2007 provides as follows:

8    Meaning of will

(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.

…

[9]Section 11 of the Wills Act sets out the required formalities for a valid will.

11 Requirements for validity of wills

(1)    A will must be in writing.

(2)    A will must be signed and witnessed as described in subsections (3) and (4).

(3)    The will-maker must—

(a)sign the document; or

(b)direct another person to sign the document on his or her behalf in his or her presence.

(4)    At least 2 witnesses must—

(a)be together in the will-maker’s presence when the will-maker—

(i)   complies with subsection (3); or

(ii)     acknowledges that—

(A)he or she signed the document earlier and that the signature on the document is his or her own; or

(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)each sign the document in the will-maker’s presence.

(5)    As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a)that he or she was present with the other witnesses when the will-maker—

(i)   signed the document; or

(ii)     acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii)   directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv)    acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)that he or she signed the document in the will-maker’s presence.

(6)    No particular form of words is required for the purposes of subsection (5).

Will validation

[10]              If there are any aspects of non-compliance with s 11, it is possible to seek Court validation under s 14 of the Act:

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 documents; 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.

[11]              An application under s 14 is to be proved on the balance of probabilities.1     As noted by the Court in Re Campbell (deceased), a high proportion of s 14 applications are successful, indicating that “the evidential burden on a s 14 applicant is not subject to a high threshold”.2

[12]              Care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuine, rather than the formal steps taken to implement those intentions.3 Where there is supporting evidence of the will-maker’s clear intentions, those intentions should be given effect over an intestacy.4

[13]              In Re Campbell (deceased), the High Court held that New Zealand law did not distinguish between seen and unseen documents. The Court merely needs to be satisfied that the content of the document expressed the deceased’s testamentary intentions. In that case, the Court was so satisfied, even though the deceased had not seen or approved the draft after it was amended by his solicitor and the deceased’s amendments had been conveyed to the solicitor by the deceased’s accountant.

[14]              In Re Estate of Fraser,5 the deceased provided will instructions in April 2011 and died in September 2011. He had not seen the draft will, but the Court was satisfied, based on the evidence provided, that it reflected the instructions conveyed to his solicitor in April 2011. The Court validated the draft will accordingly.

[15]              Where there has been a lapse in time between the making of the document sought to be validated, and the death of the deceased, the Court needs to consider whether there is any evidence suggesting that the deceased changed their mind about making a will.6 However, a distinction should be drawn between a change of heart, as opposed to mere inadvertence or a misunderstanding.7 In Amundson v Raos,8 the Court was satisfied that the deceased had not changed his mind during the five month delay between providing his will instructions and the date of his death.

1      Mason v Mason [2022] NZHC 491, [2022] NZFLR 64.

2      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [17].

3      Swift v Rodgers [2022] NZHC 2543 at [38](a)–(b).

4      At [38](d).

5      Re Estate of Fraser HC Napier CIV-2011-441-700.

6      Tamarapa v Byerley [2014] NZHC 1082 at [27(a)].

7      Re Estate of Uruamo [2017] NZHC 931 at [4].

8      Amundson v Raos [2015] NZHC 2422.

Intestate provisions

[16]              Where the deceased has left no valid will, or the disposition by will fails for some reason, a total or partial intestacy results. In both cases, the estate is distributed according to the statutory scheme of intestate succession as set out in the Administration Act 1969.9

[17]              Section 77 of the Administration Act contains a table setting out how the estate must be distributed, depending on the categories of people left surviving.

Analysis

[18]              The affidavit in support of the application is from Ms Rowson, a senior trustee employed by Public Trust. She is the person who met with Mr Pomeroy at the Public Trust offices on 29 November 2022 to take detailed instructions about his new will.

[19]              Mr Pomeroy gave her a copy of his 2010 Will on which he had made handwritten amendments, along with three pages of handwritten notes with his questions and instructions. Ms Rowson discussed those issues with him and took detailed notes by entering the information into the Public Trust wills’ platform, a copy of which was printed out and included in the exhibit evidence.

[20]              It is clear from Mr Pomeroy’s written notes, as well as the notes  in the  Public Trust wills’ platform, that Mr Pomeroy was able to describe his assets in some detail and he gave clear instructions about what he wanted in his new will, with many of the terms based on what had been included previously in the 2010 Will. Ms Rowson has set out in some detail the explanations that he gave for his various decisions.    Mr Pomeroy also gave instructions about his funeral wishes and in relation to specific gifts.

[21]              Ms Rowson says that she read her note of the instructions back to him and he seemed to be satisfied with those terms. The meeting concluded on the basis that she would prepare the will in accordance with those instructions and send him a physical

9      Administration Act 1969, ss 77–77C.

copy in the post (as he did not use email). This is what occurred, with the draft will sent by post on 9 February 2023.

[22]              It is not known whether the deceased received or reviewed the draft will, but a copy was located by family members amongst his papers. There was a relatively short delay of three months between the deceased providing the will instructions to the Public Trust and his death. There is nothing to suggest that he changed his mind in the interim.

[23]              Having regard to the substantive provisions of the 2010 Will and the detailed instructions he gave for the new will, I am satisfied that the deceased did not wish his estate to be determined by the laws of intestacy. Under those default provisions, testamentary trusts for the benefit of his two sons would not be created. These were provided for in the 2010 Will and it is clear that the deceased wished to have those protections in place for his sons under his new will.

[24]              Based on the evidence, I am satisfied that validation of the document marked “E” referred to in the affidavit of Ms Rowson sworn on 24 July 2024 is appropriate. In terms of each of the requirements of s 14 of the Wills Act:

(a)it is a document that came into existence in New Zealand;

(b)the document appears to be a will, it being drafted in a form ready for his execution;

(c)the document does not comply with s 11 because it has not been executed; and

(d)I am satisfied that the document expresses the deceased’s testamentary intentions based on the facts explained in the supporting affidavit evidence. Comprehensive evidence has been provided about his instructions for the terms of the will, supported by his handwritten notes and the contemporaneous notes taken by Ms Rowson at the time she took those instructions.

Result

[25]For all of the above reasons, I make orders:

(a)declaring the document marked “E” and referred to in the affidavit of Ms Rowson sworn 24 July 2024 to be the last will of Kevin Ross Pomeroy;

(b)granting probate in common form, with Public Trust appointed as executor and trustee; and

(c)authorising the costs and disbursements of this application to be paid out of the estate funds.

O’Gorman J