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 will.    She is  the only person potentially affected by that change.   So far as the replacement of the executor is concerned, the evidence indicates that inquiries have been made which indicate that Barclays Bank International Executor and Trust Company (Private) Limited is not registered in New Zealand.   There were two companies associated with Barclays Bank previously incorporated in New Zealand, Barclays Bank Plc which was registered in New Zealand in 1988 and gave notice of ceasing to carry on business in

New Zealand in December 2007.  Barclays New Zealand Limited was incorporated in August 1960 and was struck off in 2005.  I do not consider that any further steps in relation to the possible existence of the named executor are necessary.  The named executor will be affected by the order sought, in that its appointment as executor will be revoked.  That is not an interest which is sufficient to justify giving the named executor an opportunity to be heard on the application.

[8]      For these reasons, I consider, in terms of r 7.46 of the High Court Rules, that the interests of justice  require the application  to be determined  without serving notice of the application.

[9]      I turn to the substantive application.   The order sought is described in [3] above.  The application is made in reliance on ss 14 and 15(a) of the Wills Act 2007 (the Act).  Sections 14 and 15 provide as follows:

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.

15       Changes

A valid will, or part of a valid will, may be changed, but only by one of the following means:

(a)      the change is—

(i)       written on the will; and

(ii)      signed and witnessed as described in section 11(3) and (4), with the signatures written beside, or near to, the change; or

(b)      the change is described in a note—

(i)       written on the will; and

(ii)      signed and witnessed as described in section 11(3)

and (4); or

(c)      the change is the obliteration of words in the will in such a way as to prevent their effect being apparent; or

(d)      the change is declared valid under section 14; or

(e)      the change is done under section 34(2).

[10]     I consider that s 15 has no application.  Section 15(a) is not applicable.  That applies to a change which is written on the will.   That is not the case here.   The change is written in a separate document.   Neither paragraphs (b) and (c) are applicable.  The change is not described in a note written on the will.  The change is not the obliteration of words in the will.

[11]     In reaching the conclusion that s 15 has no application, I have not overlooked s 15(d).  I consider that that provision does not apply to a change in a will which is made by a codicil which is separate from the will, so that the change is neither written on the will nor described in a note written on the will.  I consider that the effect of s 15(d) is to extend the power of the Court under s 14 to a change of the type described in s 15(a)(i) and 15(b)(i), where the requirements of s 15(a)(ii) or

15(b)(ii) have not been met.  It might also extend the Court’s power under s 14 to an obliteration falling within s 15(c).  That point does not arise here.  I find that section

15(d) does not apply to a change made by a codicil separate from the will itself.  The power to declare a codicil valid must be derived directly from s 14.

[12]     This document is in the form of a codicil to the 1972 will.  Section 8 of the

Act defines the term will.  It provides (as relevant):

(1)      Will means a document that—

(a)      is made by a natural person; and

(b)      does any or all of the following:

(i)        disposes of property to which the person is entitled when he or she dies; or

(ii)      disposes of property to which the person's personal representative becomes entitled as personal representative after the person's death; or

(iii)     appoints a testamentary guardian.

(2)      When this Act refers to making, changing, revoking, or reviving a will, it means a will as defined in subsection (1).

(3)      When  this  Act  refers  to  a  will  in  any  other  context,  it  means whichever is appropriate of the following:

(a)      a will as defined in subsection (1); or

(b)      a document that changes a will as defined in subsection (1);

or

(c)      a document that revokes a will as defined in subsection (1);

or

(d)      a document that revives a will as defined in subsection (1);

or

(e)      a codicil to a will as defined in subsection (1).

[13]     This document will come within the definition of will, if it is a codicil under s 8(3)(e).   Section 8(3), not s 8(2), will apply to it, if the relevant context is not a reference to changing, revoking, or reviving a will.  Because, as I have held, s 15 has no application, the relevant context here is not a reference to a change under s 15. The relevant context is s 14.  In the context of s 14, the definition in s 8(3) applies.

[14]     For these reasons I find the Court has power to declare the codicil valid under s 14, by reason of the definition of will in s 8(3)(e).

[15]     Accordingly, I approach the question in issue by considering whether the requirements of s 14 are met with respect to the 2008 codicil.  The document is in a form such that it appears to be a codicil.  It does not comply with s 11, because there is only one witness, and the circumstances in which the testator and that witness

signed are not apparent from any attestation clause.  Accordingly, I find that s 14(1)

applies to the codicil.

[16]     The Court may make an order declaring the codicil valid, if it is satisfied that the document expresses the deceased’s testamentary intentions.  I am satisfied that it does.   It is quite 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.

[17]     For these reasons, there will be an order declaring valid, as a codicil to the will    of    the    deceased    dated    22 September 1972,    the    document    dated

30 September 2008 marked B produced to and referred to in the affidavits of Darryl- Lee Prince sworn on 1 August 2011.

“A D MacKenzie J”

Solicitors:         Grant O’Donnell, Lawyer, Palmerston North

Counsel Instructed: Glenn Mason, Lawyer, Palmerston North