Estate Bricknell
| Jurisdiction | New Zealand |
| Judge | Hinton J |
| Judgment Date | 18 June 2021 |
| Neutral Citation | [2021] NZHC 1463 |
| Docket Number | CIV-2021-485-603555 |
| Court | High Court |
IN THE MATTER of the Estate of Natalie Ann Bricknell
[2021] NZHC 1463
Hinton J
CIV-2021-485-603555
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Wills — application on a without notice basis orders for review of a Registrar's refusal to grant probate of a will and for correction of a will — the deceased had a New Zealand and overseas will — revocation — revival — jurisdiction and correction of overseas will — Wills Act 2007
N du Toit for the Applicant
This judgment was delivered by me on 18 June 2021 at 4:00 pm
pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Beverly McLean seeks on a without notice basis orders for review of a Registrar's refusal to grant probate of a will. She also makes an informal application to correct a will under s 31 of the Wills Act 2007 (the Act).
Natalie Ann Bricknell died on 24 August 2020. She had lived in both New Zealand and South Africa and held assets in both countries.
Ms Bricknell made a will in New Zealand on 20 January 2009 (the New Zealand will). Ms McLean, Ms Bricknell's daughter, is the executor of the New Zealand will. 1 Under the New Zealand will, her husband having predeceased her, the residue of Ms Bricknell's estate is shared equally between Ms McLean and Ms Bricknell's grandson, Chad Bricknell, subject to his attaining 21 years of age. If Chad had died before he turned 21 then his share passed to his mother, Yvonne Bricknell. Chad is still alive.
Ms Bricknell then made a will in South Africa on 19 October 2017 (the South African will). The executors under the South African will are Standard Trust Ltd or the Standard Bank of South Africa Ltd, whichever accepts first. The South African will states that it revokes all previous testamentary dispositions. Under it 50 per cent of the residue of Ms Bricknell's estate goes to Ms McLean, 40 per cent to Chad Bricknell and 10 per cent to Yvonne Bricknell.
On 27 November 2017, Ms Bricknell emailed her lawyer in New Zealand saying “(t)he will you hold only pertains to my New Zealand assets as I have a South African will which deals with my South African assets”.
No other documents are relied upon.
Following Ms Bricknell's demise, Ms McLean made a without notice application to the Registrar of this Court on 10 March 2021 for probate of the New Zealand will of the deceased “that relates only to her estate situated in New Zealand”.
On 29 March 2021 the Registrar advised the solicitors for Ms McLean that if evidence could be provided showing the later will (that is the South African will) is valid under South African law, probate in New Zealand can be granted in terms of that will under r 22 of the High Court Rules. The Registrar asked if the original South African will could be provided.
That then resulted in a memorandum from Ms du Toit dated 7 April 2021 saying that the applicant is unsure whether either of the executors nominated in the South African will have accepted the appointment and that the applicant did not wish the New Zealand Court to consider the South African will in any respect other than to conclude that on a proper construction the revocation clause in the South African will did not relate to the New Zealand assets.
On 13 May 2021 the Registrar advised counsel that the South African will was not limited to property in South Africa and Ms Bricknell's email of 27 November 2017 could not be treated as a revival under s 17 of the Wills Act 2007 of the earlier New Zealand will such that it would apply to property in New Zealand.
The Registrar said that the applicant could possibly make an application to this Court under ss 14 or 31 of the Act for an order that the earlier New Zealand will be given effect in relation to property of the deceased in New Zealand. For convenience I set out these sections:
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.
…
31 Correction
(1) This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it—
(a) contains a clerical error; or
(b) does not give effect to the will-maker's instructions.
(2) The court may make an order correcting the will to carry out the will-maker's intentions.
As noted above, the applicant has, since the Registrar's advice of 13 May 2021, sought to review, or alternatively rely on s 31 of the Act.
On the application for review Ms McLean relies primarily on Re Lees, 2 a decision of Heath J. There, the will-maker had made two wills, one in New Zealand and a later one...
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