There were also doubts about the deceased's testamentary capacity
The High Court has admitted to probate deceased’s will instruction notes despite failure to comply with the formal requirements of a valid will.
In Public Trust v Fairbairn [2023] NZHC 2605, Bruce Henry Sullivan, an 80-year-old resident of Winara Care Home in Waikanae, passed away on 14 July 2022. He was never married and had no children. He had three siblings, but he had nothing to do with them since his mother's funeral some 15 years previously. His only apparent confidante and caregiver was his neighbour, Carly May Johnson, who played a significant role in his life during his final days.
The deceased drafted a will with a local law firm in 2005. The residue of his estate was designated for two old friends. However, as Sullivan's health deteriorated in 2022, he revisited his will. He contacted the Public Trust's Kapiti Office to request assistance drafting a new will.
On 20 June, Kimberley Renee Rayner, an employee of the Public Trust, met with Sullivan at the care home to record his instructions for a new will. She took a copy of the Public Trust's standard Will Instructions form with her. She filled out parts of that form after seeking instructions from the deceased. Some parts of the form were not filled out, and Rayner did not have the deceased sign the form.
The court also noted that parts of the form were filled out diagrammatically rather than in complete sentences. There was a question, "How would you like the residue of her estate to be distributed?" The words "Carly Johnson" were written below the question with an arrow running down from it to the terms "Carly's children (none yet)." A further arrow below that to the word "Charity" and then the names of four charities with "1/4" beside each charity.
Before the meeting, Rayner attempted to consult a doctor at the care home to assess Sullivan's testamentary capacity but was unsuccessful due to the deceased's fluctuating condition. Despite the uncertainty, Rayner decided to proceed with drafting the will.
On 11 July, Rayner returned to the care home with a colleague to read the will to Sullivan, who confirmed his satisfaction. A clause acknowledging his shaky signature was added to the file. Sullivan passed away on 14 July 2022.
Rayner requested a psychiatrist on her opinion on the deceased's testamentary capacity, and her view was that Sullivan had testamentary capacity to give instructions and express his testamentary intentions but did not have testamentary capacity on the day he signed the will on 11 July.
The plaintiff sought validation of the unsigned will instructions form. They argued that the notes expressed the deceased's testamentary intentions, even if they were not in the form of a final will. However, the defendant raised several concerns about the deceased's capacity.
The court will grant the application if satisfied that the will instruction notes expressed the deceased's testamentary intentions. The court may consider the document itself, the evidence on the signing and witnessing of the document, the deceased's testamentary intentions and proof of statements made by the deceased.
Suppose the court is satisfied that the document accurately records the deceased's testamentary intentions. In that case, the court is entitled to validate it, notwithstanding that it does not comply with the formal requirements for a will, including being signed by the deceased and his signature being witnessed by two independent witnesses.
The court considered Rayner's evidence and accepted there was certainty that the deceased intended that the beneficiary of his estate was to be Carly. The court was also satisfied that the notes contained his final wishes rather than being provisions or subject to change.
In light of the evidence provided, the court accepted that the deceased had testamentary capacity when the will instructions were given. He knew that he did not have long to live, and he knew that he wished Carly to be the beneficiary of his will rather than anyone else. The court was satisfied that he intended the contents of the will instruction notes to form the basis of a new and final will.
Furthermore, the court said that the fact that the deceased's instructions were not recorded clearly was not reflective of any indecision or uncertainty on the part of the deceased but resulted from the deficiencies in how Rayner recorded the deceased's instructions.
Accordingly, the High Court declared the will instruction notes a valid will and the deceased's last will. The court granted probate to the Public Trust in solemn form regarding the validated will.
