PUBLIC TRUST v OXNER [2020] NZHC 2383

PUBLIC TRUST v OXNER [2020] NZHC 2383 [14 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000889[2020] NZHC 2383UNDER the Wills Act 2007, s 14IN THE MATTER of the estate of RODGER MARTIN OXNERBETWEEN PUBLIC TRUSTApplicantAND JOAN MARY OXNERFirst RespondentANNE GREENSLADE OXNERSecond RespondentGRAEME KEITH BEAGLEY as executorof the estate of ROBERT BENJAMINGREENSLADE OXNERThird RespondentHearing: On the papersCounsel: G M Cairns for ApplicantJudgment: 14 September 2020JUDGMENT OF WOOLFORD J[As to application for order declaring will to be valid]This judgment was delivered by me on Monday, 14 September 2020 at 12:15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Thomas Dewar Sziranyi Letts (G Cairns), Lower Hutt[1] Rodger Martin Oxner (the deceased) died at Auckland on 4 August 2017. ThePublic Trust seeks an order under s 14 of the Wills Act 2007 that a letter dated16 March 2004 addressed to the Public Trust and signed by the deceased is declaredvalid as his last will.[2] Section 14 of the Wills Act 2007 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, ifit is satisfied that the document expresses the deceased person'stestamentary 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.Factual background[3] The Public Trust is the applicant in these proceedings as it is the namedexecutor in the last known validly executed will of the deceased, dated 14 May 1980.(the 1980 will). The 1980 will provided for the deceased's estate to be divided into10 parts, and distributed as follows:(a) Four parts to the deceased's sister, Joan Mary Oxner (Joan).(b) Three parts to the deceased's brother, Edwin Argyle Oxner (Edwin), orto Edwin's children in equal shares if Edwin pre-deceased the deceased.(c) Three parts to the deceased's sister, Sally Barbara Hope (Sally). IfSally pre-deceased the deceased, these parts were to go to Joan (inaddition to her four parts above). If Joan also pre-deceased thedeceased, then Sally's parts were to go to her own children in equalshares.[4] Both Edwin and Sally have since passed away, with Edwin passing away on19 February 2004 and Sally passing away on 5 April 2014. Joan is elderly andpresently in poor health.[5] Edwin had two children, Ann Greenslade Oxner and Robert BenjaminGreenslade Oxner. Robert himself passed away on 20 December 2017. Sally had twochildren, Joan Collis and Barbara Collis. The deceased himself had no children andwas not in a relationship.[6] When the copy of the 1980 will was located amongst the deceased'spossessions, it was noted that cl 2(b) of the will had been struck through in blue pen.Further, two letters, dated 10 March 2004 and 16 March 2004 respectively, werestapled to the will. Each of these letters was addressed to the Public Trust and signedby the deceased. These letters, and a copy of the 1980 will, were made available tothe Public Trust after the deceased's passing. Public Trust has considered these lettersand understands them to be statements of the deceased's testamentary intentions. Thatis on the basis that:(a) The letters were stored with and stapled to the deceased's 1980 will.(b) The letters were addressed to the Public Trust, which was the namedexecutor of the 1980 will.(c) The letter dated 10 March 2004 states:My brother E.A. OXNER is dead. I wish to change my willto make my sister Joan OXNER my sole beneficiary.(d) The letter dated 16 March 2004 states:My brother E.A. OXNER is dead. I make my sister JoanOXNER sole beneficiary. From then on nothing for nephewRobert OXNER, niece Ann nee Oxner, Russell OXNER,sister in law or descendants. Nieces Joan nee Wall Barbaranee Wall nephews Simon OXNER, David OXNER get 1/20each. Balance to scholarships for research heart disease,cancer 3/10 each. 1/10 each charities Foundation for blindand cancer society.(e) These letters appear to be consistent with each other, with the deceasedexpressing an intention in both letters to leave his estate to his sister,Joan, as sole beneficiary.(f) In the letter dated 16 March 2004, the deceased appears to turn his mindto the possibility of Joan pre-deceasing him, by noting first that Joan isto be "sole beneficiary", but going on to say "from then on", andsubsequently listing a number of other relatives and charities, andprescribing particular shares in his estate to each of them as follows:(i) 1/20 each to Joan Wall, Barbara Wall, Simon Oxner and DavidOxner (a total of 4/20);(ii) 3/10 each to "scholarships for research heart disease, cancer" (atotal of 6/10);(iii) 1/10 "charities foundation for blind and cancer society" (a totalof 2/10).(g) Together these shares add up to 100 per cent of the estate, whichsupports the interpretation that the deceased intended thesedistributions to be made only in the event that Joan pre-deceased him,as she was otherwise named as "sole beneficiary".(h) The copy of the 1980 will was also found to have a blue line drawnthrough cl 2(b), which appears to be an attempt by the deceased to strikethrough this clause. This is consistent with the contents of thedeceased's letters, namely that his brother, Edwin, had passed away,and that he wished for his sister Joan to be sole beneficiary, as opposedto any of Edwin's children, who would otherwise have beenbeneficiaries under cl 2(b) after Edwin's death.[7] The Public Trust has no record of receiving the letter dated 16 March 2004.However, it appears that the letter dated 10 March 2004 was received by Public Trust.Documents saved in Public Trust's will system show that a Public Trust employeefilled out a will instruction questionnaire on 17 March 2004, which records that thedeceased wished to leave his estate to his sister, Joan, solely; and:Instructions received through a note. Have tried to contact Martin (sic) todiscuss f/g/o but with no luck. Previous Will and notes suggest never marriedand no children.The Public Trust understand that the reference to "Martin" is in fact to the deceased.Martin is the deceased's middle name.[8] The staff member also appears to have gone on to create a draft will based onthose instructions, which records that the deceased's estate is to be left to Joan solely,in accordance with the letter dated 10 March 2004. The deceased never actuallyattended Public Trust to execute the draft will, despite the attempts made by the staffmember to contact him.[9] Validation of the letter as the deceased's will would have an impact on thefollowing parties:(a) The deceased's sister, Joan. If the letter is validated, she will receive100 per cent of her brother's estate, as opposed to her distribution underthe 1980 will, which was to be 70 per cent (on the basis that she wasentitled to 40 per cent herself, and her sister, Sally's, 30 per cent if Sallypre-deceased her, which she has).(b) The children of the deceased's brother, Edwin (also deceased). Underthe 1980 will, Edwin was to receive 30 per cent of the estate, and if hepre-deceased the deceased, his children would receive his 30 per centshare in equal parts. By way of comparison, if the 2004 letter isvalidated, Edwin's children will not receive anything.[10] As the deceased's sister, Joan, survived the deceased, the gifting overprovisions in the 2004 letter do not take effect. Accordingly, the beneficiaries namedin the 16 March 2004 letter (David Oxner, Simon Oxner, Joan Wall, Barbara Wall anda number of named charities) do not have anything other than a notional interest in theproceedings.Parties served with the proceedings[11] By minute dated 18 June 2020, Associate Judge P J Andrew directed that theproceedings be served on the following parties:(a) The first respondent, Joan Mary Oxner;(b) The second respondent, Ann Greenslade Oxner, of Canberra, Australia(who is one of two children of Edwin Oxner); and(c) The third respondent, Graeme Keith Beagley, of Thames, solicitor, asexecutor of the estate of Robert Benjamin Greenslade Oxner (thesecond child of Edwin Oxner).[12] All three respondents have now been served. The first respondent, Joan, hasnot filed a notice of opposition to the application. She was, in fact, visited by a seniortrustee employed by the Public Trust before the proceeding was filed. She signed aconsent form agreeing to the Public Trust filing the court application to have the lettervalidated by the Court and have Public Trust formally confirmed as the executor ofher late brother's estate. She said that this was consistent with her understanding ofher late brother's intentions.[13] After service of the proceedings on the second respondent, Public Trustreceived a letter from her solicitor, who confirms that the second respondent consentsto the proposed orders. The solicitor's letter also attaches a copy of a letter written bythe second respondent in support. It states:I, Ann Greenslade Oxner (Woods), am in agreement with my Uncle Rodger'sdecision to have his sister JOAN MARY OXNER as his sole beneficiary.Joan has supported Rodger, her mother and many other family membersthroughout her life and this bequest is well deserved.[14] The third respondent was also served with the proceedings. He hasacknowledged receipt of them, but has not filed a notice of opposition to theapplication. The relevant ten working day period for filing any notice of oppositionhas now expired in relation to all parties directed to be served.Decision[15] I am satisfied that the letter dated 16 March 2004 is likely to be the deceased'smost recent expression of his testamentary intentions for the following reasons:(a) Public Trust is satisfied that the deceased did not execute any furtherwills after the 1980 will.(b) The letters dated 10 and 16 March 2004 post-date the 1980 will andwere addressed to Public Trust, who drafted the 1980 will.(c) Apart from these letters, Public Trust is not aware of any otherdocuments created by the deceased that set out the deceased'stestamentary intentions.(d) The letters clearly evince the deceased's intention to benefit Joan. Theletters are also consistent with each other and are consistent with thedeceased's action in striking out cl 2(b) on the copy of the 1980 will(located with the letters).(e) Without being handwriting experts, Public Trust is highly confident thatthe signature on both letters looks very similar to the deceased'ssignature on the 1980 will.(f) Public Trust has no reason to doubt the deceased's testamentarycapacity in 2004.(g) None of the parties named in the 1980 will, or in the 16 March 2004letter, have a right to claim against the deceased's estate under theprovisions of the Family Protection Act 1955.(h) I am also not aware of any valid claims to be advanced by those partiesunder the Law Reform (Testamentary Promises) Act 1949.(i) Finally, the deceased himself had no children and was not in arelationship. Therefore, it is not anticipated that there are any otherpotential beneficiaries who would have a valid claim against thedeceased's estate.[16] There will, accordingly, be the following orders:(a) The handwritten letter dated 16 March 2004 addressed to the PublicTrust and signed by the deceased is declared to be the last will of thedeceased, Rodger Martin Oxner.(b) The Public Trust is appointed as executor and trustee of the deceased'sestate.(c) Probate in common form of the letter dated 16 March 2004 is grantedto Public Trust as executor.(d) Public Trust's costs of and incidental to this application are to be paidout of the estate._________________________Woolford J