Public Trust v Parkinson - [2022] NZHC 38

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002173 [2022] NZHC 38

BETWEEN PUBLIC TRUST as Executor of the Will of the late JOHN MICHAEL DUNN Applicant

AND

MARY FRANCES ROSE PARKINSON

First Respondent

ALISTAIR FRANCIS DUNN
Second Respondent

CHRISTINE MARIE DUNN
Third Respondent

KIRI SECURITIES LIMITED

Fourth Respondent

Hearing: On the papers

Counsel:

N Moore for applicant

N Davies and B Molloy for first respondent

Judgment:

25 January 2022

JUDGMENT OF KATZ J

[Will validation]

This judgment was delivered by me on 25 January 2022 at 3.30 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:Thomas Dewar Sziranyi Letts, Lower Hutt Haigh Lyon Lawyers, Auckland

PUBLIC TRUST v PARKINSON & ORS [2022] NZHC 38 [25 January 2022]

Introduction

[1] John Dunn died on 26 April 2020, aged 89 years old. His last known valid will was executed on 16 October 2014 (“the 2014 will”). In late 2018 Mr Dunn took steps to create a new will. Following correspondence with Mr Dunn, the Public Trust prepared a new draft will between February and March 2019 (“the 2019 will”). Despite reminders from Public Trust, Mr Dunn did not finalise and execute that draft will prior to his death over a year later.

[2] The Public Trust is the applicant in this case but is neutral on the outcome. It abides the decision of the Court. It applies for either:

(a)a grant of probate of the 2014 will; or

(b)the validation of the 2019 will under s 14 of the Wills Act 2007 (“the Act”), and a grant of probate of that will.

[3] All beneficiaries under both wills were served with this proceeding. Only Mary Parkinson, Mr Dunn’s de facto partner of 24 years, responded to the Public Trust’s application. She stands to receive a further $150,000 under the 2019 will, in addition to the $250,000 that Mr Dunn bequeathed her in his 2014 will. Ms Parkinson’s position is that the 2019 will should be validated as it expresses Mr Dunn’s true testamentary intentions.

Facts

[4] In 1996, Ms Parkinson and Mr Dunn became de facto partners, both having previously been married. They had known each other for many years prior.

[5] For many years towards the end of Mr Dunn’s life he suffered from various ailments and afflictions. Ms Parkinson cared for him, in the couple’s home.

[6] On 6 October 2014, the 2014 will was executed. Clause 4.8 of the 2014 will gifted Ms Parkinson $250,000. An annexed statement by Mr Dunn explained the reasoning behind this bequest. He confirmed that the provisions of the Family Protection Act 1955 had been explained to him. He referred to a de facto property agreement dated 17 June 1998. Mr Dunn stated that both he and Ms Parkinson were

“wealthy in our own right and therefore Mary will be financially independent.” He stated that no assets had been purchased or acquired during the relationship (other than household chattels, which had…

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 Parkinson

Details

AGLC: Public Trust v Parkinson [2022] NZHC 38
Case: [2022] NZHC 38
Decision Date: 25 January 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the Public Trust applied for either a grant of probate of John Dunn's 2014 will or for the 2019 will to be validated under s 14 of the Wills Act 2007 and for a grant of probate of that will. Mary Parkinson, Mr Dunn's de facto partner of 24 years, stood to receive $400,000 under the 2019 will and $250,000 under the 2014 will. She submitted that the 2019 will should be validated as it expresses Mr Dunn's true testamentary intentions. The court had to decide whether the 2019 will was valid under s 14 of the Act. It considered whether the 2019 will expressed Mr Dunn's testamentary intentions and concluded that it did not. The 2019 will had not been signed and witnessed, which was a formal requirement of s 11 of the Act. The court was satisfied that the 2019 will appeared to be a will, had come into existence in New Zealand and expressed Mr Dunn's testamentary intentions. However, the court was not satisfied that Mr Dunn had reached a final position on the monetary gifts in his will. It was possible that he could have given further instructions before finalising his will, particularly as to the quantum of the various specific gifts. The 2019 will did not reflect Mr Dunn's written instructions of December 2018. It appeared that Mr Dunn had given the Public Trust updated instructions as to the quantum of some of the gifts, possibly verbally. He had then put the will "on hold" and delayed in finalising the will. The court was not satisfied on the balance of probabilities that the 2019 will reflected Mr Dunn's testamentary intentions. There were no issues as to the validity of the 2014 will. The court granted probate of the 2014 will and reserved leave to file memoranda on costs.

Orders