Public Trust v Percy

[2024] NZHC 102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002391

[2024] NZHC 102

IN THE MATTER OF

the estate of Wendy Douglas Corkill

BETWEEN

PUBLIC TRUST

Applicant

AND

ANNE-MARIE PERCY

First Respondent

LYNNE MAREE PARSONS
Second Respondent

DEANNA LEE MORGAN KEMP
Third Respondent

RHONDA JOY AMELIA BETHUNE
Fourth Respondent

VIVIEN ELIZABETH PEMBROKE

Fifth Respondent

Hearing:

7 February 2024

Counsel:

GM Cairns for Applicant

KP McDonald for First Respondent

Judgment:

7 February 2024

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Thomas Dewar Sziranyi Letts, Lower Hutt. Kevin McDonald & Associates, Auckland.

PUBLIC TRUST v PERCY [2024] NZHC 102 [7 February 2024]

Issue

[1]This brief judgment addresses an unopposed application to validate a draft will.

Background

[2]                 Wendy Corkill died at a hospice 6 May 2023. Ms Corkill was 66 years old. She had no spouse, partner, or children.

[3]                 Ms Corkill made a will 1 June 2016. The 2016 will divided her estate equally between five friends.

[4]                 In the days before her death, Ms Corkill asked her friend, Anne-Marie Percy (a barrister), to help her make a new will. Ms Percy was one of the five beneficiaries under the 2016 will, and the executor to Ms Corkill’s estate.

[5]                 Ms Percy contacted the Public Trust on 28 April 2023. It arranged a capacity assessment.

[6]On 1 May 2023, Dr Juhaina Al Ruhelli concluded Ms Corkill:

(a)“Understands what a will is and what its consequences are.”

(b)“Knows the nature and extent of her assessments and liabilities.”

(c)“Knows the names and relationships of her close relatives and can assess their claims to her property.”

(d)“Is free from any disorder of the mind that might distort feelings or judgements relevant to making a will.

(e)Was “competent to make a will.”

[7]                 Helen Stanley of the Public Trust met Ms Corkill 3 May 2023. Ms Corkill told Ms Stanley she wanted to give specific jewellery to Ms Percy, as well as the balance

of her estate. Ms Stanley recorded these instructions “on a Public Trust will instruction sheet”, and later prepared a draft will consistent with those instructions.

[8]                 Ms Stanley asked Ms Corkill who should have her estate if Ms Percy died before her. Ms Corkill could not decide.

[9]                 Ms Stanley telephoned Ms Corkill at the hospice two days later (5 May 2023) to resolve this issue. Ms Corkill said she could still not decide who should have her estate if Ms Percy died before her. Ms Stanley told Ms Corkill she would “continue to draft a will for her without a substitution clause and … would be in touch again in the next week”. Again, Ms Stanley recorded her interactions with Ms Corkill on a will instruction sheet.

[10]As observed earlier, Ms Corkill died 6 May 2023.

[11]              On 12 July 2023, the Public Trust wrote to the four other beneficiaries under the 2016 will saying:1

Prior to her death, Mrs Corkill had a Will in place dated 01 June 2016 in which the residuary estate was to be shared equally between five beneficiaries, of which you are one (copy enclosed).

Before her death, Mrs Corkill gave instructions on the 3rd May 2023 for her Will to be updated. Mrs Corkill passed away before she was able to sign a final version of the updated Will. Mrs Corkill’s final instructions did not include any provision for you.

There are major differences between the will dated 01 June 2016 and the unsigned will prepared in May 2023. Under the terms of the 01 June 2016 Will you receive a 20% share of the residuary estate. The estate has a total value of $356,747.00 and your share has a value of $71,349.40 (subject to all estate costs and liabilities being paid).

The purpose of this letter is to determine whether you are prepared to honour the deceased’s last wishes in whole or part and direct that the estate be distributed in accordance with those instructions. Please feel free to discuss the matter with your lawyer.

This option would require each of the beneficiaries from the June 2016 Will executing a Deed agreeing to the estate being distributed in this manner. If you agree to this option, the provision made for you in the 01 June 2016 Will would no longer be applicable.

1      The Public Trust had earlier written to the beneficiaries alerting them to the draft will and the 2016 will.

We request your response to this letter by 28th July 2023 stating whether you agree to the estate being distributed according to Ms Corkill’s last wishes.

[12]              All responded. Three of the four said the 2016 will should prevail. Consequently, the Public Trust filed this application (to validate the draft will).

[13]              The application has been served on all of the beneficiaries under the 2016 will. Three contacted a lawyer, contemplating opposition. However, no notice of opposition has been filed. Moreover, the  lawyer  advising  the  three  told  the  Public Trust no opposition would be forthcoming.

[14]              Two  other matters should be recorded.  First, the copy of the 2016 will at   Ms Corkill’s home was annotated: all of the beneficiaries had been crossed out. Second, the application is supported by Ms Percy.

Principle

[15]Section 14 of the Wills Act 2007 is the important provision. It reads:

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.

[16]Applications under s 14 are now commonplace. Most succeed.2

2      See Re Campbell [2014] NZHC 1632 at [17].

Analysis

[17]              Dr Al Ruhelli’s proximate assessment of Ms Corkill puts capacity beyond doubt. So, the only issue is whether the draft will reflects Ms Corkill’s testamentary intentions; more particularly, whether her indecision about a substitutionary beneficiary calls into question her testamentary intentions?

[18]              I am satisfied it does not: having concluded Ms Percy should be given her entire estate, it is hardly surprising Ms Corkill could not decide what should happen if Ms Percy died before her. Indeed, Ms Corkill’s inability to decide this question tends to affirm her intention to leave her estate to Ms Percy, particularly given the chronology explained earlier.

Result

[19]The application is granted, with costs to be paid by the estate.

[20]Probate is granted to the validated will in common form.

……………………………..

Downs J