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 As he had not signed the new will and the 2010 Will was revoked when he married, the deceased died intestate.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…

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.

Continue reading Public Trust v Nirza

Details

AGLC: Public Trust v Nirza [2024] NZHC 3801
Case: [2024] NZHC 3801
Decision Date: 12 December 2024

CaseChat Overview and Summary

This case involves an application by the Public Trust to validate a draft will of the late Kevin Ross Pomeroy. The application was not opposed and was heard in a formal proof hearing. The deceased's two sons provided written consent to the Court orders that were sought, and his wife, Marta Nirza, abides by the Court's decision. The deceased's last known executed will, dated 1 November 2010, appointed Public Trust as his executor and trustee. However, this will was revoked when the deceased married Ms Nirza on 22 June 2012. The deceased had a contracting out agreement in place with Ms Nirza at the time they married. On 29 November 2022, the deceased met with a senior trustee at Public Trust's customer centre in Whangārei 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. However, the deceased died intestate on 18 February 2023 as he had not signed the new will.

The Court was required to decide whether the draft will complied with the formal requirements of a will under the Wills Act 2007. The Court also needed to consider whether the document expressed the deceased's testamentary intentions. The Court found that the draft will did not comply with s 11 of the Wills Act because it had not been executed. However, the Court was satisfied that the document expressed the deceased's testamentary intentions based on the facts explained in the supporting affidavit evidence. The Court found that the deceased had given clear instructions about what he wanted in his new will, and there was nothing to suggest that he changed his mind in the three months between providing the will instructions to the Public Trust and his death. The Court was also satisfied that the deceased did not wish his estate to be determined by the laws of intestacy.

The Court made orders 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. The Court granted probate in common form, with Public Trust appointed as executor and trustee, and authorized the costs and disbursements of this application to be paid out of the estate funds.

Orders