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…

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 Percy

Details

AGLC: Public Trust v Percy [2024] NZHC 102
Case: [2024] NZHC 102
Decision Date: 7 February 2024

CaseChat Overview and Summary

The High Court of New Zealand was asked to validate a draft will made by Wendy Corkill shortly before her death. The applicants, the Public Trust, sought to have the draft will recognised as Corkill's valid testamentary document. Corkill had originally made a will in 2016, which divided her estate equally among five friends. In the days before her death, Corkill asked her friend, Anne-Marie Percy, who was one of the beneficiaries under the 2016 will and the executor, to help her draft a new will. Percy contacted the Public Trust, which facilitated a capacity assessment and the drafting of the new will. Corkill expressed her wish to leave specific jewellery and the balance of her estate to Percy, but she was unable to decide on a substitutionary beneficiary if Percy predeceased her. Corkill died before she could sign the draft will. The Public Trust wrote to the other four beneficiaries under the 2016 will, seeking their agreement to distribute the estate according to Corkill's last instructions. Three of the four beneficiaries declined to honour Corkill's last wishes, leading to the Public Trust's application to the court to validate the draft will.

The central legal issue was whether the draft will, which was unsigned and lacked a substitutionary clause, accurately reflected Corkill's testamentary intentions. The court had to determine if Corkill's incapacity to decide on a substitutionary beneficiary undermined the validity of the draft will. Section 14 of the Wills Act 2007 was the primary legal provision. It allows the High Court to declare a document valid if it is satisfied that the document expresses the deceased person's testamentary intentions, despite not complying with the formalities outlined in section 11 of the Act.

The court found that Corkill's capacity to make a will was beyond doubt, based on the capacity assessment conducted by Dr. Al Ruhelli. The court concluded that Corkill's inability to decide on a substitutionary beneficiary did not call into question her testamentary intentions. Given Corkill's clear intent to leave her entire estate to Percy, her inability to decide on an alternative beneficiary if Percy predeceased her only underscored her primary intention. Consequently, the court granted the application to validate the draft will.

The court ordered that probate be granted to the validated will in common form, with costs to be paid by the estate. This decision ensures that Corkill's last wishes, as reflected in the draft will, are honoured, despite the opposition from three of the beneficiaries under the 2016 will.

Orders