Estate of Alder [2015] NZHC 2117 (2 September 2015)

Last Updated: 24 September 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-207 [2015] NZHC 2117

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER	of the estate of Mary Josephine Alder later of Raumati, Widow, deceased
BETWEEN	PUBLIC TRUST Applicant

Hearing:	31 August 2015
Counsel:	C J Kelly for Applicant
Judgment:	2 September 2015

_{JUDGMENT OF CLIFFORD J}

[1] This is an on-notice application made pursuant to s 14 of the Wills Act 2007 to declare a document to be the valid Will of Mary Josephine Alder.

[2] Mrs Alder died on 25 September 2014.

[3] On 20 October 1993 Mrs Alder signed a will (the 1993 Will) at the offices of the Public Trust in Hamilton. Mrs Alder subsequently moved to Raumati. The Public Trust records show that preparations were made to send the 1993 Will to its Paraparaumu branch. The 1993 Will never arrived at Paraparaumu and there was no record in the Hamilton offices as to whether or not the 1993 Will had, in fact, ever been sent. The 1993 Will had, as an executive of the Public Trust said when writing

_{to Mrs Alder in 1996, “disappeared without trace”.}

ESTATE ALDER [2015] NZHC 2117 [2 September 2015]

[4] On 19 September and 1 October 1996 the Public Trust wrote to Mrs Alder to explain to her what had happened and to give her advice as to what she should do. Those letters reflect ongoing communications by Mrs Alder with the Public Trust: the 19 September letter was sent to her from the local, Paraparaumu, office. The

1 October letter came from the Public Trust’s head office in Wellington. Mrs Alder was urged to get in touch with the Public Trust to make arrangements for preparing a new Will. Mrs Alder, however, never got in touch with the Public Trust again.

[5] Mrs Alder moved into resthome care in early 2014. Mrs Alder’s niece, Mrs Margaret Gilmer, asked the Public Trust to apply for appointment as manager of Mrs Alder’s property under the Protection of Personal Property Rights Act 1988.¹

At that time Mrs Gilmer provided the Public Trust with a handwritten document, dated 16 December 1996 and appearing to be signed by Mrs Alder. The 1996

Document records cancellation of the 1993 Will and testamentary dispositions distributing all of Mrs Alder’s estate (the 1996 Document).

[6] After Mrs Alder’s death a copy of the 1993 Will was found amongst her possessions. That copy of the 1993 Will had a number of handwritten alterations on it, and had lines struck through it in its entirety.

[7] In the 1993 Will Mrs Alder made a number of specific dispositions, and left the residue of her estate to be divided equally between such of her second cousin Ruth Wilson, her niece Judith Ngarimu and her second cousin Ann Scott as were living at her death. The 1996 Document provides that Mrs Alder’s estate is to be divided equally between her niece Judith Ngarimu and her younger brother Rex, subject only to Mrs Alder’s husband’s DSM citation and medal being left to the Naval Museum at Auckland. The 1996 Document provides additionally:

The property to be handed over to the heirs mentioned Judith Ngarimu and

Rex Alder.

This will include any shares and cash held by me in any bank account.

_{[8] The 1996 Document is signed:}

¹ A medical certificate was subsequently obtained, but Mrs Alder died before the order was made.

M J Alder

2/72 Rimu Road

Raumati

Wellington

[9] The Public Trust commenced these proceedings in March this year. It applied for and was granted authority to sell Mrs Alder’s residential unit at 72 Rimu Road, Paraparaumu. It is in the process of doing so. It also applied for an order declaring the 1996 Document to be Mrs Alder’s valid will so that, no doubt, it could in turn apply for probate.

[10] Section 14 of the Wills Act provides:

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.

[11] As MacKenzie J observed in Re Campbell (deceased), a decision of some importance in this area as it was delivered following full argument:²

[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law

² Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706.

required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[12] Against that background I consider the Public Trust’s application.

[13] These proceedings were commenced on notice. The beneficiaries of the 1993

Will, in addition to Mrs Ngarimu, namely Ruth Wilson and Ann Scott, were served. They were provided with copies of both the 1993 Will and the 1996 Document. The Maritime Museum at Wellington was, in the circumstances, not served.

[14] Mrs Wilson and Mrs Scott both signed letters from the Public Trust acknowledging service. Counsel for the Public Trust, Mr Kelly, subsequently wrote to them, advising in more detail of the circumstances relating to the Public Trust’s application, and of their entitlement to take part in these proceedings. Mr Kelly received no response to those letters.

[15] The Public Trust’s application was supported by affidavit evidence, including an affidavit from Mrs Ngarimu. In that affidavit, Mrs Ngarimu confirmed that the handwriting of the 1996 Document was that of her aunt, Mrs Alder. I also note that (although I am not a handwriting expert) the handwriting of the 1996 Document, in particular of the signature, looks very similar if not identical in key respects to that found on the 1993 Will.

[16] As a document recording testamentary intentions, the 1996 Document is clear and, save in one regard, complete. The 1996 Document is only incomplete in that cl

2, which in the 1993 Will recorded the appointment of the Public Trust as executor and trustee, is left blank.

[17] Thus the 1996 Document appears to be a Will: it records, in clear terms, the basis of distributing all of Mrs Alder’s estate. It does not comply with s 11 of the Wills Act because, although signed by Mrs Alder, it was not witnessed by two persons who in their presence saw her sign that document. Therefore, to declare the

1996 Document to be a valid Will I must be satisfied that it expresses Mrs Alder’s

testamentary intentions.

[18] Were it not for the existence of the copy of the 1993 Will found after Mrs Alder’s death, that would be a reasonably straightforward conclusion to reach. There is, I acknowledge, no evidence (other than the 1996 Document) as to those intentions. There is no evidence of any statements made by Mrs Alder in particular as to her intentions as regards the disposition of her estate. But that absence of evidence would not preclude me being satisfied that the 1996 Document, when considered on its own, records Mrs Alder’s testamentary intentions.

[19] The real question here is whether I can conclude that as between the 1993

Will (as signed and subsequently amended but then “crossed out”) and the 1996

Document, the 1996 Document reflects Mrs Alder having changed her mind and, at

the time it was signed, it represented Mrs Alder’s testamentary intentions.

[20] On that question, I think the most probative evidence is that provided by the two letters sent by the Public Trust to Mrs Alder in September and October of 1996, and by her action in completing and signing the 1996 Document.

[21] In September, and having advised Mrs Alder of the unfortunate circumstance of the loss of her Will, the Public Trust advised Mrs Alder:

This creates an obvious problem as it appears that these documents have been lost along with your file which was despatched at the same time. Should you now die without having made a new will you will have effectively died intestate. Please therefore telephone me urgently on

2987154 so that we can arrange a suitable time for me to call on you and take instructions for the preparation of a new will.

[22] In its letter of 1 October 1996 the Public Trust referred to a letter from, and a subsequent telephone conversation with, Mrs Alder. Having again discussed the circumstance of the loss of the Will, the letter went on to say:

It is possible to obtain probate of a copy will and I emphasised to you the importance of keeping your copy will safe until you have decided upon the provisions of any new will. If there is likely to be any significant delay it may be wise to reinstate the existing will. The enduring power of attorney will also need to be replaced.

[23] Against that background, together with what I find to be Mrs Alder’s actions

in marking amendments on the face of the 1993 Will, and drawing lines across it to

strike it out in its entirety, I am satisfied that the 1996 Document represents Mrs Alder’s testamentary intentions, as opposed to the (amended) 1993 Will. The letter of 1 October 1996 Mrs Alder received from the Public Trust is of relevance. That letter emphasised the importance of Mrs Alder keeping her copy of the 1993

Will safe “until you have decided upon the provisions of your new will”. In my view, the 1996 Document records that decision. That Mrs Alder also kept a copy of her previous will, the 1993 Will, is perhaps not surprising given her experience with the Public Trust having lost the original.

[24] I have also considered the inferences that can safely be drawn from the fact that, although Mrs Alder carefully signed the 1996 Document, she did not herself ever communicate its contents to the Public Trust, or arrange for a formal will to be prepared by the Public Trust. On the copy of the 19 September 1996 letter appended to Mr Kelly’s written submissions, a telephone number is written in what appears to be Mrs Alder’s handwriting. That number is “04-4743770”, the number of the Public Trust’s head office in Wellington, as recorded in the 1 October letter.

[25] I think the fairly obvious inference is that, dissatisfied with the explanation provided by the local Paraparaumu branch, Mrs Alder made it her business to contact head office to discuss the circumstances and implications of the loss of the 1993

Will. The fact that Mrs Alder did not complete the paragraph numbered 2 of the

1996 Document, in which numbered paragraph in the 1993 Will the Public Trust is appointed as executor, can thus be understood. That is, naturally dissatisfied with what had happened, Mrs Alder may not have decided that the Public Trust was to be appointed executor.

[26] Being satisfied that the 1996 Document does, in terms of s 14(2) of the Wills

Act, express Mrs Alder’s testamentary intentions, I declare the 1996 Document to be

_{Mrs Alder’s valid will.}

Solicitors:

Greg Kelly Law, Wellington for Applicant

“Clifford J”