Public Trust v Oxner
[2020] NZHC 2383
•14 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000889
[2020] NZHC 2383
UNDER the Wills Act 2007, s 14 IN THE MATTER
of the estate of RODGER MARTIN OXNER
BETWEEN
PUBLIC TRUST
Applicant
AND
JOAN MARY OXNER
First Respondent
ANNE GREENSLADE OXNER
Second RespondentGRAEME KEITH BEAGLEY as executor of the estate of ROBERT BENJAMIN GREENSLADE OXNER
Third Respondent
Hearing: On the papers Counsel:
G M Cairns for Applicant
Judgment:
14 September 2020
JUDGMENT OF WOOLFORD J
[As to application for order declaring will to be valid]
This judgment was delivered by me on Monday, 14 September 2020 at 12:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Thomas Dewar Sziranyi Letts (G Cairns), Lower Hutt
PUBLIC TRUST v OXNER [2020] NZHC 2383 [14 September 2020]
[1] Rodger Martin Oxner (the deceased) died at Auckland on 4 August 2017. The Public Trust seeks an order under s 14 of the Wills Act 2007 that a letter dated 16 March 2004 addressed to the Public Trust and signed by the deceased is declared valid as his last will.
[2]Section 14 of the Wills Act 2007 provides:
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 document; 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.
Factual background
[3] The Public Trust is the applicant in these proceedings as it is the named executor in the last known validly executed will of the deceased, dated 14 May 1980. (the 1980 will). The 1980 will provided for the deceased’s estate to be divided into 10 parts, and distributed as follows:
(a)Four parts to the deceased’s sister, Joan Mary Oxner (Joan).
(b)Three parts to the deceased’s brother, Edwin Argyle Oxner (Edwin), or to Edwin’s children in equal shares if Edwin pre-deceased the deceased.
(c)Three parts to the deceased’s sister, Sally Barbara Hope (Sally). If Sally pre-deceased the deceased, these parts were to go to Joan (in addition to her four parts above). If Joan also pre-deceased the
deceased, then Sally’s parts were to go to her own children in equal shares.
[4] Both Edwin and Sally have since passed away, with Edwin passing away on 19 February 2004 and Sally passing away on 5 April 2014. Joan is elderly and presently in poor health.
[5] Edwin had two children, Ann Greenslade Oxner and Robert Benjamin Greenslade Oxner. Robert himself passed away on 20 December 2017. Sally had two children, Joan Collis and Barbara Collis. The deceased himself had no children and was not in a relationship.
[6] When the copy of the 1980 will was located amongst the deceased’s possessions, it was noted that cl 2(b) of the will had been struck through in blue pen. Further, two letters, dated 10 March 2004 and 16 March 2004 respectively, were stapled to the will. Each of these letters was addressed to the Public Trust and signed by the deceased. These letters, and a copy of the 1980 will, were made available to the Public Trust after the deceased’s passing. Public Trust has considered these letters and understands them to be statements of the deceased’s testamentary intentions. That is on the basis that:
(a)The letters were stored with and stapled to the deceased’s 1980 will.
(b)The letters were addressed to the Public Trust, which was the named executor of the 1980 will.
(c)The letter dated 10 March 2004 states:
My brother E.A. OXNER is dead. I wish to change my will to make my sister Joan OXNER my sole beneficiary.
(d)The letter dated 16 March 2004 states:
My brother E.A. OXNER is dead. I make my sister Joan OXNER sole beneficiary. From then on nothing for nephew Robert OXNER, niece Ann nee Oxner, Russell OXNER, sister in law or descendants. Nieces Joan nee Wall Barbara nee Wall nephews Simon OXNER, David OXNER get 1/20
each. Balance to scholarships for research heart disease, cancer 3/10 each. 1/10 each charities Foundation for blind and cancer society.
(e)These letters appear to be consistent with each other, with the deceased expressing an intention in both letters to leave his estate to his sister, Joan, as sole beneficiary.
(f)In the letter dated 16 March 2004, the deceased appears to turn his mind to the possibility of Joan pre-deceasing him, by noting first that Joan is to be “sole beneficiary”, but going on to say “from then on”, and subsequently listing a number of other relatives and charities, and prescribing particular shares in his estate to each of them as follows:
(i)1/20 each to Joan Wall, Barbara Wall, Simon Oxner and David Oxner (a total of 4/20);
(ii)3/10 each to “scholarships for research heart disease, cancer” (a total of 6/10);
(iii)1/10 “charities foundation for blind and cancer society” (a total of 2/10).
(g)Together these shares add up to 100 per cent of the estate, which supports the interpretation that the deceased intended these distributions to be made only in the event that Joan pre-deceased him, as she was otherwise named as “sole beneficiary”.
(h)The copy of the 1980 will was also found to have a blue line drawn through cl 2(b), which appears to be an attempt by the deceased to strike through this clause. This is consistent with the contents of the deceased’s letters, namely that his brother, Edwin, had passed away, and that he wished for his sister Joan to be sole beneficiary, as opposed to any of Edwin’s children, who would otherwise have been beneficiaries under cl 2(b) after Edwin’s death.
[7] The Public Trust has no record of receiving the letter dated 16 March 2004. However, it appears that the letter dated 10 March 2004 was received by Public Trust. Documents saved in Public Trust’s will system show that a Public Trust employee filled out a will instruction questionnaire on 17 March 2004, which records that the deceased wished to leave his estate to his sister, Joan, solely; and:
Instructions received through a note. Have tried to contact Martin (sic) to discuss f/g/o but with no luck. Previous Will and notes suggest never married and no children.
The Public Trust understand that the reference to “Martin” is in fact to the deceased. Martin is the deceased’s middle name.
[8] The staff member also appears to have gone on to create a draft will based on those instructions, which records that the deceased’s estate is to be left to Joan solely, in accordance with the letter dated 10 March 2004. The deceased never actually attended Public Trust to execute the draft will, despite the attempts made by the staff member to contact him.
[9] Validation of the letter as the deceased’s will would have an impact on the following parties:
(a)The deceased’s sister, Joan. If the letter is validated, she will receive 100 per cent of her brother’s estate, as opposed to her distribution under the 1980 will, which was to be 70 per cent (on the basis that she was entitled to 40 per cent herself, and her sister, Sally’s, 30 per cent if Sally pre-deceased her, which she has).
(b)The children of the deceased’s brother, Edwin (also deceased). Under the 1980 will, Edwin was to receive 30 per cent of the estate, and if he pre-deceased the deceased, his children would receive his 30 per cent share in equal parts. By way of comparison, if the 2004 letter is validated, Edwin’s children will not receive anything.
[10] As the deceased’s sister, Joan, survived the deceased, the gifting over provisions in the 2004 letter do not take effect. Accordingly, the beneficiaries named
in the 16 March 2004 letter (David Oxner, Simon Oxner, Joan Wall, Barbara Wall and a number of named charities) do not have anything other than a notional interest in the proceedings.
Parties served with the proceedings
[11] By minute dated 18 June 2020, Associate Judge P J Andrew directed that the proceedings be served on the following parties:
(a)The first respondent, Joan Mary Oxner;
(b)The second respondent, Ann Greenslade Oxner, of Canberra, Australia (who is one of two children of Edwin Oxner); and
(c)The third respondent, Graeme Keith Beagley, of Thames, solicitor, as executor of the estate of Robert Benjamin Greenslade Oxner (the second child of Edwin Oxner).
[12] All three respondents have now been served. The first respondent, Joan, has not filed a notice of opposition to the application. She was, in fact, visited by a senior trustee employed by the Public Trust before the proceeding was filed. She signed a consent form agreeing to the Public Trust filing the court application to have the letter validated by the Court and have Public Trust formally confirmed as the executor of her late brother’s estate. She said that this was consistent with her understanding of her late brother’s intentions.
[13] After service of the proceedings on the second respondent, Public Trust received a letter from her solicitor, who confirms that the second respondent consents to the proposed orders. The solicitor’s letter also attaches a copy of a letter written by the second respondent in support. It states:
I, Ann Greenslade Oxner (Woods), am in agreement with my Uncle Rodger’s decision to have his sister JOAN MARY OXNER as his sole beneficiary.
Joan has supported Rodger, her mother and many other family members throughout her life and this bequest is well deserved.
[14] The third respondent was also served with the proceedings. He has acknowledged receipt of them, but has not filed a notice of opposition to the application. The relevant ten working day period for filing any notice of opposition has now expired in relation to all parties directed to be served.
Decision
[15] I am satisfied that the letter dated 16 March 2004 is likely to be the deceased’s most recent expression of his testamentary intentions for the following reasons:
(a)Public Trust is satisfied that the deceased did not execute any further wills after the 1980 will.
(b)The letters dated 10 and 16 March 2004 post-date the 1980 will and were addressed to Public Trust, who drafted the 1980 will.
(c)Apart from these letters, Public Trust is not aware of any other documents created by the deceased that set out the deceased’s testamentary intentions.
(d)The letters clearly evince the deceased’s intention to benefit Joan. The letters are also consistent with each other and are consistent with the deceased’s action in striking out cl 2(b) on the copy of the 1980 will (located with the letters).
(e)Without being handwriting experts, Public Trust is highly confident that the signature on both letters looks very similar to the deceased’s signature on the 1980 will.
(f)Public Trust has no reason to doubt the deceased’s testamentary capacity in 2004.
(g)None of the parties named in the 1980 will, or in the 16 March 2004 letter, have a right to claim against the deceased’s estate under the provisions of the Family Protection Act 1955.
(h)I am also not aware of any valid claims to be advanced by those parties under the Law Reform (Testamentary Promises) Act 1949.
(i)Finally, the deceased himself had no children and was not in a relationship. Therefore, it is not anticipated that there are any other potential beneficiaries who would have a valid claim against the deceased’s estate.
[16]There will, accordingly, be the following orders:
(a)The handwritten letter dated 16 March 2004 addressed to the Public Trust and signed by the deceased is declared to be the last will of the deceased, Rodger Martin Oxner.
(b)The Public Trust is appointed as executor and trustee of the deceased’s estate.
(c)Probate in common form of the letter dated 16 March 2004 is granted to Public Trust as executor.
(d)Public Trust’s costs of and incidental to this application are to be paid out of the estate.
Woolford J
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