Samuelson

[2023] NZHC 3322

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000627

[2023] NZHC 3322

IN THE MATTER OF	Wills Act 2007, s 14
IN THE MATTER OF	An application by PUBLIC TRUST for an order that a document be declared a valid will of the deceased RALPH DALE SAMUELSON, of Wellington University, student (deceased)

Hearing:

20 November 2023

Appearances:

L S Gilmor for Applicant (Public Trust)

No appearance by parties served (Donald Hoffhine and Royal Forest and Bird Protection Society)

Judgment:

22 November 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 22 November 2023 at ….

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………..

SAMUELSON [2023] NZHC 3322 [22 November 2023]

Introduction

[1]                 Public Trust applies by way of originating application for an order under s 14 of the Wills Act 2007 that a document be declared a valid will of the deceased, Ralph Dale Samuelson.

[2]                 Both the Royal Forest and Bird Protection Society of New Zealand (RFBPSNZ) and Mr Donald Hoffhine, beneficiaries under the last known executed will of the deceased, have been served with the proceedings but no notice of opposition has been filed.   The RFBPSNZ filed a notice of appearance reserving rights on     15 November 2023 but did not appear at the hearing. Public Trust seeks an order that a more recent draft will be declared valid.

[3]                 The lack of a notice of opposition does not guarantee an originating application’s success. The Court must still assess any application on its merits, according to law.1

[4]In this judgment I address the merits of the application, as required.

Background

[5]                 The deceased’s last known executed will is dated 3 June 2014 (the 2014 will) and it appointed Public Trust as the executor and trustee.

[6]                 The 2014 will was limited to dealing with the deceased’s New Zealand assets only.

[7]The terms of the 2014 will provided, amongst other matters:

(a)Gift of house and land at 408/163 The Terrace, Wellington Central and carpark unit P15A at Gilmer Terrace, Wellington to the deceased’s friend, Mr Donald Charles Hoffhine, incorrectly spelled Hoffine in the will (Donald).

1      Mihinui v Attorney-General [2017] NZHC 654 at [13]; Bargrove v MSM Holdings NZ Ltd [2021] NZHC 322, (2021) 21 NZCPR 867 at [2].

(b)All household goods including motor vehicles to Donald.

(c)All money payable under his entitlement as contributor to the State Sector Retirement Scheme to Donald.

(d)The residuary estate to be distributed as to a half share to Donald and a half share to RFBPSNZ.

[8]                 In early 2022, the deceased entered details for a new will into the Public Trust online self-service will system (the draft will), again naming Public Trust as the executor and trustee of it.

[9]                 On 17 February 2022, the deceased went into the Wellington office of Public Trust and met with a senior trustee, namely Mr John Murfitt, to discuss his will and other estate planning documents. On that day, the deceased told Mr Murfitt he wanted some assistance to complete the draft will he had started himself online, as he believed he had complex issues that he could not finalise by himself, such as tax and assets in the USA.

[10]             Mr Murfitt has sworn and filed an affidavit on behalf of Public Trust in support of its application. That affidavit sets out the deceased’s instructions in detail and provides  the  documents  which  the  deceased  gave  to  him  when  they  met  on  17 February 2022.

[11]             Mr Murfitt recalls in his affidavit that all of the deceased’s instructions for his new intended will were incorporated into the draft will, except the wording of the endowment to Eastwoodhill Trust Board.

[12]             The differences in the disposition of property in the draft will to those in the 2014 will are:

(a)Donald would receive all furniture, furnishing, electronic equipment, digital assets, art, jewellery and other household or personal possessions not otherwise gifted.

(b)There is no specific gift of the real property on The Terrace or the Gilmer Terrace carpark.

(c)The residuary estate is to be divided:

(i)62 per cent to Victoria University of Wellington Foundation;

(ii)8 per cent to RFBPSNZ;

(iii)8 per cent to Environmental Defence Society Incorporated;

(iv)14 per cent to the Queen Elizabeth II National Trust; and

(v)8 per cent to Eastwoodhill Trust Board.

[13]             Public Trust called the deceased by telephone on 19 May 2022 to come in to sign the will but received no answer.

[14]On 24 May 2022, Public Trust was notified that the deceased had died.

[15]             The approximate value of the deceased’s New Zealand estate is NZD $1.1 million.

Relevant legal principles

[16]Section 14 of the Wills Act 2007 provides:

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.

1. 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.

[17]An application under s 14 is to be proved on the balance of probabilities.

Analysis and decision

[18]             I have read the comprehensive affidavit of Mr Murfitt, senior trustee of Public Trust, filed in support of the application. I note that the deceased was never married nor in a civil union partnership and had no children.

[19]             It is clear that the draft will, although not executed, is expressed in clear, comprehensive  and  unambiguous  terms  and  prepared  with  the  assistance  of   Mr Murfitt, senior trustee.

[20]I am satisfied on the balance of probabilities that the draft will:

(a)is a document that records the deceased’s testamentary instructions; and

(b)appears to be a will in that it makes specific bequests to named beneficiaries, appoints Public Trust as the executor and otherwise contains the hallmarks of a will; and

(c)does not comply with s 11 of the Wills Act 2007 because it was not signed by the deceased, nor witnessed by independent persons; and

(d)expresses the deceased’s testamentary intentions that were initially input by the deceased himself into an online will system and then were expressed to Public Trust, who finalised the draft will.

[21]             I accordingly grant the application and make an order declaring the draft will to be a valid will. The draft will expresses the deceased’s testamentary intentions.

Result

[22]             I grant the application by Public Trust. The draft will of the deceased is declared to be a valid will.

Andrew J