Re Prince - [2012] NZHC 1058

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-510 [2012] NZHC 1058

IN THE MATTER OF HERBERT ARTHUR LEONARD PRINCE

Hearing: On the papers Counsel: G Mason Judgment: 18 May 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.30pm on the 18th day of May 2012.

JUDGMENT OF MACKENZIE J

[1] Mr Prince previously lived in Zimbabwe. In 1972, he made a will there. He appointed Barclays Bank International Executor and Trust Company (Private) Limited as executor. In 2008 he immigrated to New Zealand, from South Africa where he was then living. Before he left, he prepared the following document:

Additional to last will and testament.

HERBERT ARTHUR LEONARD PRINCE of 1 Rockridge View 186
Soutpansburg Drive Oakdene Johannesburg on 30 September 2008 soon to be New Zeeland

I am to immigrate to New Zeeland October 2008 and I do not know if there is a Barclays Bank there and so if I die before updating my will I wish for my daughter DARRYL-LEE PRINCE of 235B Watershed Road Palmerston North New Zealand to fill the vacancy of the office of Executor created. I wish for her to have my property of 1 Rockridge View 186 Soutpansburg Drive Oakdene Johannesburg South Africa if not sold before I die

[2] He signed the document and it was witnessed by one witness, apparently his maid, who is now deceased. There is a minor error in the signature part of the

RE PRINCE (DECEASED) HC PMN CIV-2011-454-510 [18 May 2012]

document, in that Mr Prince’s surname has been omitted where his name has been

typed under the space for his signature.

[3] Mr Prince died at Palmerston North on 2 October 2009. His daughter Darryl- Lee Prince now applies for an order “that the document associated with the will of Herbert Arthur Leonard Prince, deceased be declared to have validly changed the will of Herbert Arthur Leonard Prince.”

[4] The first question to be considered is whether the application may properly be dealt with on a without notice basis, under r 7.46 of the High Court Rules. The most important consideration is whether all persons who may be affected by the making of the order have a proper opportunity to be heard.

[5] The document set out above purports to do two things:

(a) Appoint the deceased’s daughter as executor in place of Barclays

Bank; and

(b) To give to her the property referred to.

[6] Under the 1972 will, the whole of the testator’s estate was left to his wife, or in the event of her pre-deceasing him, to “my children or the survivors of them or their descendants by representation”. The deceased’s wife died on 6 March 2007. The deceased had one child, his daughter the applicant, Dr Prince. She is accordingly the sole beneficiary under the 1972 will.

[7] Because Dr Prince is the sole beneficiary the second change will not effect any substantive change to the dispositions in the…

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.

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Details

Case: [2012] NZHC 1058
Decision Date: 18 May 2012

CaseChat Overview and Summary

The case of Re Prince involves the application by Darryl-Lee Prince to declare a 2008 codicil to her father Herbert Arthur Leonard Prince's 1972 will as valid. The deceased had originally appointed Barclays Bank International Executor and Trust Company (Private) Limited as executor in his 1972 will, but before immigrating to New Zealand, he prepared a document to change this appointment in the event of his death before updating his will. The document appoints Darryl-Lee as executor and grants her the property of 1 Rockridge View in Johannesburg, South Africa, if it has not been sold before his death. The court had to determine whether the application could be dealt with without notice and whether the codicil was valid.

The court first considered whether the application could be dealt with on a without notice basis under rule 7.46 of the High Court Rules. The court found that Darryl-Lee, as the sole beneficiary under the 1972 will, was the only person potentially affected by the changes in the codicil. As for the named executor, Barclays Bank International Executor and Trust Company (Private) Limited, the court found that it was not registered in New Zealand and therefore had no interest sufficient to justify giving it an opportunity to be heard on the application.

Turning to the substantive application, the court found that section 15 of the Wills Act 2007 did not apply as the change was made in a separate document and not written on the will or described in a note written on the will. The court found that section 15(d) did not apply to a change made by a codicil separate from the will itself. The court found that the 2008 document was a codicil to the 1972 will and came within the definition of will under section 8(3)(e) of the Act. The court had the power to declare the codicil valid under section 14 of the Act, as it appeared to be a codicil and did not comply with section 11 of the Act.

The court found that the requirements of section 14 were met with respect to the 2008 codicil. It was apparent from the terms of the document that the deceased was aware of the terms of the appointment of executor, and the difficulties which his move to New Zealand might create for that appointment. He wished to change that appointment. The court was satisfied that the document expressed the deceased's testamentary intentions.

In conclusion, the court found that the 2008 document was a valid codicil to the 1972 will and ordered that it be declared as such. The court found that Darryl-Lee was appointed as executor in place of Barclays Bank International Executor and Trust Company (Private) Limited and that she was granted the property of 1 Rockridge View in Johannesburg, South Africa, if it had not been sold before the deceased's death.

Orders