NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED V NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED AND ORS HC AK CIV-2009-404-003161

NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED V NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED AND ORS HC AK CIV-2009-404-003161 17 August 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-003161IN THE MATTER OF an application for an order of probate in solemn form in the estate of George Ernest Roy Thomas of Auckland, retired, deceased BETWEEN NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Plaintiff AND NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED First Defendant AND CANCER SOCIETY OF NEW ZEALAND AUCKLAND DIVISION INCORPORATED Second Defendant AND CCS DISABILITY ACTION AUCKLAND INCORPORATED Third Defendant AND DIABETES NZ AUCKLAND INCORPORATED Fourth Defendant Continued over Hearing: 17 August 2009 Appearances: A W Johnson for the plaintiff and first defendant N Tetzlaff on instruction for the sixth and ninth defendants J Lee in person Judgment: 17 August 2009(ORAL) JUDGMENT OF STEVENS JSolicitors/Counsel: A W Johnson, Martelli McKegg Wells & Cormack, PO Box 5745, Wellesley Street, Auckland 1141 A S MacLean, Burrowes & Co, PO Box 24515, Manners Street, Wellington 6142 Copy to: J Lee, 14 Linden Street, Mt Roskill, Auckland 1041Cont AND NATIONAL HEART FOUNDATION OF NEW ZEALAND Fifth Defendant AND THE SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS AUCKLAND INCORPORATED Sixth Defendant AND JOHN LEE Seventh Defendant AND JANET MARY McLEOD and GRAHAM MAURICE McLEOD Eighth Defendant AND NEW ZEALAND RED CROSS INCORPORATED Ninth DefendantIntroduction[1] This is an application by the New Zealand Guardian Trust Company Limited (the plaintiff) for an order that probate of the Will of George Ernest Roy Thomas (the deceased) dated 9 December 2005 be granted in solemn form to the plaintiff. [2] The deceased had executed two earlier Wills, namely, on 16 December 1983 and on 12 July 2005. The plaintiff was named as executor and trustee in all three Wills. [3] The plaintiff was concerned that there may have been an issue regarding capacity and possible improper influence with regard to the Will of 9 December 2005 (the December 2005 Will). Hence, the plaintiff filed a statement of claim seeking the order for probate in solemn form. [4] Detailed evidence in support of the application was filed from persons who were involved in the preparation of the Wills in July and December 2005. Counsel for the plaintiff has in his helpful submissions referred to that evidence and in particular the affidavits of Henry John Graham and John David Roger Campbell in support.Procedural issues[5] When the application came before Associate Judge Faire, he directed that all beneficiaries in each of the three Wills be served. Although this may have been seen as cumbersome, it was nevertheless appropriate and consistent with the decision of McMullin J in Re Millen (deceased) [1975] 2 NZLR 605. [6] There was a case management conference before Associate Judge Faire on 30 July 2009. All of the parties who have been served, bar two (to whom further reference will be made below) had either responded indicating that they did not oppose the application or were present at the conference and indicated that same view.[7] In this conference Minute, Associate Judge Faire noted at [1]:All indicate no opposition to the grant of probate as sought in the statement of claim but do emphasise that there is a need for the matter to be formally proved.[8] Associate Judge Faire then directed the allocation of a hearing which was set down for this morning.Formal hearing[9] So far as the two parties who did not appear at the case management conference are concerned, an affidavit of service has been filed confirming service of the proceeding upon those parties, the third and fourth defendants. [10] Mr Johnson for the plaintiff has confirmed that he has had discussions with the honorary solicitor for the third defendant and received advice that that party did not oppose the application. [11] So far as the fourth defendant is concerned, there has been no appearance today. But again there is no hint of any opposition from that party. [12] At the hearing today, the following parties are represented: the plaintiff and the first defendant, the sixth and ninth defendant represented by Mr Tetzlaff appearing on instruction from Ms MacLean and Mr Lee and the seventh defendant who appeared in person. The remaining parties were all represented at the case management conference and at that time indicated no opposition to the application.Disposal[13] The plaintiff has filed a draft order seeking probate in solemn form. There is also a helpful memorandum from Catherine Ann Atchison confirming that the material put forward would be satisfactory if the plaintiff was seeking an application for probate in common form. There is the usual affidavit for obtaining a grant of probate with the Will annexed, and an affidavit proving death.[14] So far as the question of capacity and the suggestion of undue influence is concerned, it may be that the concerns of the plaintiff were overstated. Possibly the plaintiff was being over cautious. All opposition has now evaporated and the Court has the comfort of knowing that all potential beneficiaries under each of the three Wills has been served and had an opportunity to place their views before the Court. [15] Quite apart from the lack of opposition, the Court has the material in the affidavits of Mr Graham and Mr Campbell which confirm that, despite his age of 95 when the December 2005 Will was executed, the deceased clearly knew what he was doing and was clear that the December 2005 Will reflected his wishes. [16] I am satisfied from all the evidence presented it has been established that the deceased had the necessary capacity. Further, I find that there was no undue influence involved in the preparation and execution of the December 2005 Will.Result[17] It is therefore appropriate that the orders sought in the statement of claim be made. I therefore order that probate of the Will of the deceased dated 9 December 2005 be granted in solemn form to the New Zealand Guardian Trust Company Limited. I further direct that the costs and any disbursements of the application be paid out of the estate of the deceased. [18] Counsel have helpfully filed a draft order. That draft order reflects the orders which I have just made and may be sealed by the Registrar. [19] I acknowledge the assistance of all counsel including those who appeared this morning. _________________________ Stevens J