Public Trust v Stevens
[2018] NZHC 2995
•19 November 2018
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2018-485-318
[2018] NZHC 2995
UNDER the Wills Act 2007 IN THE MATTER
of the estate of MOREEN ISABELL SCOTT also known as MOREEN ISABELLE SCOTT also known as MOREEN ISABEL SCOTT of Nelson, Retired (deceased)
BETWEEN
PUBLIC TRUST
Plaintiff
AND
LINLEY ANNE STEVENS, MICHAEL DAVID SCOTT and ROBERT JOHN SCOTT
First Defendants
FRED HOLLOWS FOUNDATION NEW ZEALAND
Second Defendant
ST JOHN NELSON
Third DefendantNELSON MARLBOROUGH RESCUE HELICOPTER TRUST
Fourth Defendant
LIFE FLIGHT TRUST
Fifth DefendantCHRISTIANS AGAINST POVERTY
Sixth DefendantNELSON WOMEN’S REFUGE
Seventh Defendant
CHRISTIAN BLIND MISSION INTERNATIONAL NEW ZEALAND
Eighth Defendant
PUBLIC TRUST v LINLEY ANNE STEVENS, MICHAEL DAVID SCOTT and ROBERT JOHN SCOTT [2018] NZHC 2995 [19 November 2018]
SEARCH AND RESCUE NELSON INCORPORATED
Ninth Defendant
COASTGUARD NELSON
Tenth Defendant
NELSON SURF LIFE SAVING
Eleventh Defendant
WORLD VISION TRUST BOARD INTERNATIONAL
Twelfth Defendant
SALVATION ARMY NELSON
Thirteenth Defendant
TEAR FUND
Fourteenth Defendant
GOSPEL FOR ASIA
Fifteenth Defendant
NELSON TASMAN REGION HOSPICE INVESTMENT TRUST
Sixteenth Defendant
On the papers: Counsel:
L S Gilmore for Plaintiff
A C Crehan for First Defendants
Judgment:
19 November 2018
JUDGMENT OF CHURCHMAN J
[1] Moreen Isabell Scott (the deceased) died on 11 January 2017. The deceased had a previously signed will (the earlier will), appointing the Public Trust as executor, dated 28 January 2008. She provided updated will instructions on 19 December 2016, having capacity at the time those instructions were taken. A new will was prepared (the draft will) on 20 December 2016 and approved by the Public Trust’s legal team on 23 December 2016. However, the Public Trust failed to provide the draft will to the deceased for her approval.
[2] At 12.53 pm on 28 December 2016, Stella Scott (the wife of Michael Scott, one of the first defendants) telephoned the Public Trust on its 0800 number asking to speak with Wendy Berkett of its Nelson office. The person who took the phone call informed Ms Scott that all of the Public Trust’s branches were closed and would reopen on 9 January 2017. Ms Scott informed the call taker that her mother-in-law was waiting for her will to be completed so she could sign it, she was “definitely failing”, and she was supposed to have heard from Ms Berkett when it was ready to be signed. The call taker advised that the Nelson Branch would be opening on 4 January and that would be the best time to contact Ms Berkett. Ms Scott replied, “OK, and hope like hell she can hang on between now and then …”, to which the call taker murmured assent. When Ms Scott asked if her mother-in-law were to die before the will is signed, would the old one stand, and, “Realistically, all I can do is wait ‘til Wednesday the 4th”, the call taker merely advised that the branch would open at 8.30.
[3] Unfortunately, before the branch reopened for the New Year, the deceased lost capacity and passed away.
[4] The Public Trust has applied to the Court for an order that probate be granted on the draft will.
[5] Under s 14(2) of the Wills Act 2007, the High Court may make an order declaring the draft will valid, if satisfied that the document expresses the deceased’s testamentary intentions. In the circumstances of this case, I am satisfied that this is an appropriate case in which to do this.
[6] There is, however, a further issue in that the first defendants say that the Public Trust is not entitled to recover its costs of and associated with the application from the estate, arguing that, if the Public Trust had made timely arrangements for the draft will to be signed, the costs of the Public Trust’s application would have been avoided. The Public Trust, it is submitted, did not take adequate steps to deal with the situation that presented itself. At no time during the telephone conversation did the call taker say anything about escalating it up to a duty manager or taking any proactive steps at all. Since the Public Trust, as claimed in its memorandum of 5 October 2018, is “acutely aware of these types of emergencies and eventualities” and has “clear procedures in
place” to deal with them, the Public Trust clearly fell well short of its professed practice standards as well as its duty to the deceased on this occasion.
[7] The Public Trust, though, submits that it acted in a reasonable and timely manner and is entitled to have its costs paid from the estate of the deceased. The timing of the instructions to the Public Trust meant that the draft will could not be executed before the Christmas close down period. Stella Scott, in her call during the close down period, never identified herself, the customer, nor the level of urgency. Both Mike and Stella Scott were fully aware of the draft will, having been at both appointments at the Public Trust with the deceased.
[8] From March 2017, the Public Trust corresponded with all of the beneficiaries of both wills, letting them know the situation and fielding enquiries and requests for further information. The Public Trust then asked whether any of the beneficiaries would be applying to validate the unsigned will and, if not, whether they would consent to an application being made:
As you are a beneficiary under both of the Wills … we are therefore writing to you to ask whether:
a.You intend to apply to the High court to have the unsigned Will declared valid?
b.If no other entitled person applies to the Court to validate the unsigned Will, and Public Trust make an application, would you be likely to object to the application or to provide your consent?
[9] While none responded that they would apply, some of the beneficiaries stated their preference was for the Public Trust to make this application. The first defendants advised that they would object to an application to validate the unsigned will:
As beneficiaries of our mother’s wills, we … would like to make our intentions clear:
a)We do NOT intend to apply to the High Court to have the unsigned will declared valid.
b)If for any reason the unsigned will is declared valid, we would object and contest it.
[10] The first defendants submit that they did not say they would object to any application by the Public Trust to validate the draft will, but rather that they would
make a claim under the Family Protection Act. In fact, once the application was made, they filed a defence stating that they would abide the decision of the Court and limit their opposition to the issue of costs.
[11] The Public Trust submits that, as the large number of beneficiaries were not in agreement and any application would be contested, it had no choice but to make an application for probate in solemn form, putting both wills to the Court and serving all parties to ensure they had the opportunity to be heard by the Court if they wished to be. Therefore, the Public Trust acted reasonably in this matter and is entitled to its costs from the estate.
[12] It is my view that the Public Trust have not acted fairly and responsibly in these particular set of circumstances. Although, when attempts are made to execute a will over the Christmas and New Year period, it is arguably reasonable to expect that there will be some delay, the circumstances that this family found itself in was not unusual and the Public Trust should have acted as it professed it would do in such a situation, following the procedures put in place for just such an eventuality. This failure to act in a timely manner led to the Public Trust having to correspond with the beneficiaries of both wills so as to ascertain their intentions, which would not have been necessary if the draft will had been signed by the deceased.
[13] By failing to follow its own procedures, the Public Trust has fallen short of expected standards, such as to justify costs being withheld.
[14]Accordingly, I make the following orders:
(a)Moreen Isabell Scott’s draft will is to be declared valid.
(b)The Public Trust is not entitled to recover its costs of and associated with the application from the estate.
(c)The first defendants are entitled to recover their costs occasioned by these proceedings from the deceased’s estate. Any dispute as to the
reasonableness of such costs shall be submitted to the Registrar for determination.
Churchman J
Solicitors:
Knapps Lawyers, Richmond for First Defendants
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