Variation of will

In Trustees Executors Limited v Poppe, Walker J explores the variation of a will against a background of a challenge as to capacity and an allegation of undue influence.  There are two wills in question, one made in 2016 and one made in 2019.  The primary difference is that the 2019 will provides that a property in Wellington goes to Edith, whereas in the earlier will, that property went to Edith and Beatrice.  Beatrice subsequently expressed concerns regarding the deceased’s capacity and Edith’s influence over the deceased with respect to the 2019 will.  Accordingly, there was no agreement as to whether the 2016 or 2019 will should be propounded.  Beatrice and Edith subsequently agreed to renounce as executors of either will and for Trustees Executors Limited (TEL) to be appointed administrator and for Letters of Administration to be granted with will annexed. 

TEL was satisfied that the deceased had testamentary capacity based on evidence from the deceased’s solicitor who deposed that the deceased understood the nature and effect of making the 2019 will, as well as understanding as the extent of her property, and that clear instructions had been given at the time.

TEL also relied on the fact that two months after making the 2019 will, the deceased was considered to have sufficient capacity to execute Enduring Powers of Attorney.

The matter proceeded as an application in solemn form in respect of the 2019 will (the 2019 Will) following which Beatrice and Edith reached a proposed compromise, recorded in a Settlement Agreement between themselves and TEL 

Subsequently Edith and Beatrice applied under Rule 27.8 of the High Court Rules for compromise of the application in solemn form.  This was supported by TEL and allowed the Court to treat the application in common form and determine the capacityby wayof affidavit evidence.  As noted at [15], notwithstanding this the “… parties cannot consent to prove one Will over another.  The Court must be satisfied as to the validity of the Will and as to the testator’s capacity when the Will was made.” 

The Court allowed the proceedings to proceed as proposed.  However, the parties also requested that the Court to vary the 2019 Will, to reflect the agreement between Edith and Beatrice.  In this regard Walker J noted at [25] that:

 “I was not initially satisfied by the original application that this Court has the jurisdiction to amend the terms of the 2019 Will.  I therefore sought further submissions from the parties on this issue.”

After seeking further submissions, the Court was satisfied that it could not rely on its inherent jurisdiction.  However, Section 4B of the Administration Act 1969 provides that:

•  with respect to the application of the Trusts Act 2019, the duties incidental to the Office of and Administrator under this Act (the Administration Act) are taken to be express trusts for the purpose of the Trusts Act 2019, and
• the Trusts Act 2019 applies, with any necessary modifications to those trusts. 

The Court also referenced the powers of variation under Sections 122, 124 and 125 of the Trusts Act and ultimately accepted that there should be a variation of the terms of the 2019 Will under the Trusts Act.  The points supporting this were:

• the primary beneficiaries under the 2019 Will consented. 
• Edith, whose interest in the Wellington property is affected under the 2019 Will, expressly consents.
• all other parties have been served with the proceedings and have taken no steps.
• there is a Settlement Agreement between TEL and the parties, as analogous to a Deed of Family Arrangement.
• That Deed of Family Arrangement does not reduce or remove any vested interest in the property within the meaning of Section 125(4) of the Trusts Act. 

The Court relying on those factors and the principle set out in Ruby v Ruby and Gavin v Gavin were satisfied to grant the application for Letters of Administration with Will Annexed and to vary the Will on the basis agreed between the parties. 

Editor’s note:  It is observed that whether or not it is sufficient to remove an allegation of undue influence is sufficient for the Court to disregard it.  The specific mechanism of the relationship between Section 4B of the Administration Act and the Trusts Act may warrant further consideration in a relevant situation to establish any parameters there, given that there was no discussion in this case of the fact there could not have been assent, given that the variation was agreed prior to the grant of Letters of Administration.

References

• Trustees Executors Ltd v Poppe [2024] NZHC 2346
• Trusts Act 2019
• Wills Act 2007
• Administration Act 1969
• Bishop v O’Dea CA 120/99, 20 October 1999
• Ruby v Ruby [2022] NZHC 282
• Gavin v Gavin [2021] NZHC 550