Public Trust v Parkinson
[2022] NZHC 38
•25 January 2022
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 RespondentCHRISTINE MARIE DUNN
Third RespondentKIRI 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 been gifted to Ms Parkinson) and that all assets included in his will had been owned prior to the relationship. In addition to Ms Parkinson, Mr Dunn left gifts to certain other named beneficiaries.
[7] On 9 December 2018, Mr Dunn emailed the Public Trust with instructions to vary the quantum of certain gifts specified in his 2014 will. In particular, he instructed that Ms Parkinson be gifted $400,000, rather than $250,000.
[8] On 22 January 2019, the Public Trust sent a letter to Mr Dunn. Unfortunately, the Public Trust has not been able to locate a copy of this letter.
[9] On 14 February 2019, Mr Dunn emailed the Public Trust, responding to its 22 January 2019 letter, as follows:
Will you kindly amend my will in terms of para 1 of your letter above and email me a draft. That is changes to gifts of money and specific effects.
Please note references to the CABLE BAY BLOCK RD should be removed as the property is now sold.
In respect of the letter attached to my will could a statement be added that no contribution has been made to my estate assets or the trusts by any other party?
In respect of CL 10 of the will is there any merit, and if so, possible for the gifts of the estate residue being made 1 day before the date of death?
(emphasis added)
[10] The missing letter might help explain a somewhat puzzling feature of this case, which is that some of the monetary bequests in the 2019 will differ from Mr Dunn’s written instructions of 9 December 2018. For example, his instructions were that two named beneficiaries should receive $10,000 each, but the 2019 will bequeaths both only $5,000 each. Similarly, Mr Dunn instructed that another beneficiary should receive $20,000, but the 2019 will provides that she receives only $15,000. It seems likely that Mr Dunn’s instructions changed some time between 9 December 2018 and 22 January 2019, but there is no reference to this in the documents the Public Trust has been able to locate.
[11] The Public Trust responded to Mr Dunn’s 14 February 2019 email confirming that it would update the will but requested pre-payment. A few hours later Mr Dunn confirmed that payment had been made.
[12] Over the next month or so the Public Trust prepared an updated draft will. On 8 March 2019, the Public Trust requested further information as to:
(a)whether Mr Dunn had sufficient assets to make the bequests; and
(b)who he wished to leave the residue of his estate to in the event that the trust named as the residual beneficiary was wound up prior to his death.
[13] Later that morning Mr Dunn left a voicemail message with the Public Trust responding that he had sufficient assets to make the bequests. He did not, however, specify an alternative recipient for his residue. The Public Trust followed up on that request at midday. Mr Dunn failed to respond. The Public Trust again emailed Mr Dunn on 26 April and 3 May 2021 requesting this information. Eventually on 29 July 2019, Mr Dunn replied that:
Maria, re my will. This has not been overlooked. At present I have other matters to address and will deal with the will later. In June my sister a beneficiary died.
[14] Mr Dunn did not get around to dealing with the will later. He died on 26 April 2020 still having not responded to the Public Trust’s request for further information.
The 2019 will differed from the 2014 will in the following key respects:
(a)The addition of the sentence “I will make my wishes known to those likely to arrange my funeral” at cl 3.
(b)Changes to the gifts of money. As noted previously, while some of the changes matched Mr Dunn’s written instructions, some of the beneficiaries receive slightly less than he had specified. The reason for this is unclear.
(c)Changes to the specific gifts and rights to select artwork, as requested in Mr Dunn’s instructions on 9 December 2018.
(d)The removal of the Cable Bay Block Road property from cl 5.2, as Mr Dunn requested in his email of 14 February 2019.
(e)Redrafting of cl 10 leaving a gap to insert an alternative recipient of the residuary estate.
Legal principles on validation of wills
[16] Section 14 of the Act provides that the Court may make an order declaring a document valid (as a will) if the document:
(a)appears to be a will;
(b)does not comply with s 11 (which sets out the formal requirements for the validity of wills);
(c)came into existence in or out of New Zealand; and
(d)expresses the deceased person’s testamentary intentions.
[17] A document is broadly defined as “any material on which there is writing”.1 This includes electronic documents.2 Whether a document “appears” to be a will is a question of the contents of the document, not its form.3 A will is a document made by a natural person that, among other things, disposes of property to which the will-maker is entitled when he or she dies.4
[18] The onus is on the proponent of the purported will to establish the elements of s 14 on the balance of probabilities.5 Although the civil balance of probabilities standard applies, there must be cogent evidence that the document reflects the deceased’s testamentary intentions “because of the importance of a declaration that a will be declared valid”.6
1 Wills Act 2007, s 6 definition of “document”.
2 See for example Blackwell v Hollings [2014] NZHC 667.
3 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].
4 Section 8(1).
5 Kirner v Falloon [2015] NZHC 1873 at [20].
6 Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009 at [11].
Should the 2019 will be validated?
[19] I am satisfied that the 2019 will came into existence in or out of New Zealand and appears to be a will, but fails to comply with s 11 of the Act. The document is headed “Will of John Michael Dunn” and describes the disposal of his property. The 2019 will was drafted by the Public Trust in New Zealand. It was never signed and witnessed, so it fails to comply with the formal requirements of the Act.7
[20] The dispositive issue is therefore whether the 2019 will expressed Mr Dunn’s testamentary intentions.
[21] First, it is not an issue that Mr Dunn did not review the 2019 will prior to his death. That is not fatal to the application, however. In Re Estate of Campbell, MacKenzie J considered that, for the purpose of ascertaining the deceased’s testamentary intentions, it does not matter whether the deceased has seen or specifically approved a draft document.8
[22] Second, Mr Dunn’s failure to complete aspects of the 2019 will does not necessarily result in it failing to express his testamentary intentions. In Re Cockroft, Osborne J held that a will that “was incomplete and subject to further adjustment” still reflected the deceased’s testamentary intentions.9 While the deceased had not allocated her residue, she signed the will knowing that the specific bequests accounted for the greatest part of her estate.10
[23] In the present case, Mr Dunn did not specify what to do with the $5,000 bequest to his sister, despite informing the Public Trust that she had died. This does not cast significant doubt on his testamentary intentions. Clause 4.3 of the 2019 will makes that bequest conditional upon her surviving Mr Dunn.
[24] Nor is Mr Dunn’s failure to specify an alternative recipient of his residue particularly relevant to his testamentary intentions. The insertion of an alternative recipient was the Public Trust’s idea. Mr Dunn was repeatedly asked by the Public
7 Section 11 sets out the formal requirements for a valid will, including that the will must be signed and witnessed in the particular way described by the section.
8 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [19]–[20].
9 Re Cockroft [2021] NZHC 191 at [19] and [24].
10 At [23].
Trust to provide one. When Mr Dunn left a voicemail with the Public Trust stating that he had the assets to make the bequests, he did not provide an alternative recipient for the residue of his estate, despite being asked to do so. It is a reasonable inference that he did not intend to wind up the longstanding trust that was named as the residual beneficiary, and therefore saw no need to specify an alternative residual beneficiary.
[25] I am not satisfied, however, that Mr Dunn had reached a final position on the monetary gifts in his will. In my view there is a real possibility that he could have given further instructions before finalising his will, particularly as to the quantum of the various specific gifts.
[26] In this context it is of note that the 2019 will does not reflect the written instructions Mr Dunn gave to Public Trust in December 2018. Rather, as previously noted, it appears that between December 2018 and February 2019 Mr Dunn must have given the Public Trust updated instructions as to the quantum of some of the gifts, possibly verbally. After doing that he effectively put the will “on hold”. Only after the fourth attempt by Public Trust to progress matters was a response forthcoming, several months later. Even then, Mr Dunn simply responded that he had not overlooked his will but had other matters to address and would deal with the will later.
[27] If the 2019 will accurately and completely reflected Mr Dunn’s testamentary intentions (save for perhaps removing his deceased sister as a beneficiary) it is somewhat surprising that he did not simply respond to the Public Trust’s reminders stating that. The fact that he sought more time to deal with the matter suggests that he may have wished to reflect further on the terms of his will before finalising it. Mr Dunn’s repeated delays in dealing with the matter undermines the conclusion that, from his perspective, the will was essentially in final form, and ready for execution. On the contrary, his delays and unwillingness to engage with the Public Trust in finalising the draft may indicate a further change of mind on his part, after giving his initial and subsequent instructions.11
[28] In Re Public Trust Wylie J was not satisfied that the will-maker’s draft will reflected her testamentary intentions. The Public Trust had emailed the draft to the will-maker, asking her to confirm it, but she did not respond before her death almost
11 See for example Re Estate of Bishop [2014] NZHC 3355 at [6].
three months later.12 The present case warrants an even greater degree of caution because of the greater period of delay and the fact that Mr Dunn’s instructions appear to have changed at least once following his initial written instructions of December 2018.
[29] Ms Parkinson deposes in her affidavit that Mr Dunn did not like to make quick decisions and in his later years was very slow at following through on anything. This evidence is somewhat of a double-edged sword. On the one hand, Mr Dunn may have made a final decision regarding the terms of his will but was simply slow to implement his decision. On the other hand, his reluctance to make “quick decisions” is also consistent with Mr Dunn taking many months to reflect on exactly what he wanted the final terms of his will to be. His delay in finalising his will may have been because he had not yet made a final decision as to its terms.
[30] For the reasons outlined, I am not satisfied on the balance of probabilities that the 2019 will reflects Mr Dunn’s testamentary intentions.
[31] There are no issues, however, as to the validity of the 2014 will. I am satisfied, therefore, that probate should be granted in respect of that will.
Result
[32]I grant probate in solemn form of the will dated 16 October 2014.
[33] If costs cannot be agreed, then leave is reserved to file memoranda. Any memorandum from the Public Trust is to be filed by 18 February 2022. Any memorandum on behalf of Ms Parkinson is to be filed by 4 March 2022.
Katz J
12 Re Public Trust [2021] NZHC 534 at [19]–[21].
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