A man whose dying wish was to gift his assets to his young neighbour has been granted, over a year after he died. Photo / 123rf
A man whose dying wish was to gift his assets to his young neighbour has been granted, over a year after he died. Photo / 123rf
A dying man who wrote instructions for a new will just weeks before passing away will have his dying wish to gift his assets to his young neighbour granted, despite a beneficiary of his previous will questioning if he had the mental capacity to change things.
Paraparaumu-based Bruce Sullivan diedin July last year aged 80. He never married, had no children and hadn’t been in touch with his three siblings in 15 years.
Until the final weeks of his life, Sullivan lived in his own home. He was isolated with no family contact and little contact with friends.
The only exception was his young female neighbour. High Court Justice Peter Churchman said it appeared the neighbour was “very good” to Sullivan and spent time caring for him. He moved into a rest home in the final weeks before his death.
In June last year, knowing his life was coming to an end, Sullivan contacted the Public Trust’s Kāpiti office asking for someone to take instructions for a new will. His previous will had gifted his assets to two friends, but he wanted them removed and replaced with his caring neighbour.
The Public Trust employee assigned to the task first tried to ascertain Sullivan’s mental capacity, but the home’s doctor was unavailable.
Regardless, she met with Sullivan on June 20 and filled out a standard will instruction form, but did not ask Sullivan to sign the document.
Justice Churchman said the document was filled out in a “diagrammatic fashion”. Sullivan’s neighbour was identified as the only beneficiary, with a downward arrow pointing to the words “[neighbour’s] children, none yet” below it.
The trust employee returned to the rest home on July 11 and read the new will to Sullivan, who confirmed he was happy with it. Sullivan signed, but his signature was shaky.
A Public Trust employee drafted Sullivan's new will, but didn't obtain his signature on the initial instructing document with details of his wishes. Photo / NZME
On July 14 the trust employee again asked the home’s doctor to assess Sullivan’s mental capacity but he was too unwell to be assessed. He died that evening.
Subsequently, the doctor said that when he saw Sullivan on the same day the will was signed, he wasn’t capable of making important decisions.
The Public Trust employee sought a second opinion from a psychogeriatrician. Her view was that Sullivan did have the capacity to give instructions back on June 20, but did not have capacity to sign the will three days before his death on July 11.
That left the trust with only the will instruction document. It asked the High Court for an order validating the instructions as Sullivan’s will.
However, one of Sullivan’s friends, a beneficiary in the 2005 will, retained a lawyer who raised concerns with the court about whether Sullivan had the mental capacity to instruct a new will. The man’s lawyer also submitted the instructions were ambiguous and the court could not identify a clear intention.
Justice Churchman found that while not a formal will, the instructions document clearly outlined Sullivan’s intentions.
“He knew that he did not have long to live and he knew that he wished [for his neighbour] to be the beneficiary of his will rather than anyone else.”
The fact the instructions weren’t recorded as clearly as they could have been was not Sullivan’s fault, but instead because of record-keeping deficiencies by the Public Trust employee. Justice Churchman said the employee was either “careless or made assumptions about some matters”, but it ultimately did not impact the clarity of Sullivan’s wishes.
He ruled the will instructions stood as Sullivan’s last will and testament, granting his neighbour ownership of his assets.
In a statement, a Public Trust spokeswoman said it is not a requirement for will instruction documents to be signed, but it is best practice. The trust did not believe their employee was careless.
“Practical circumstances can make [signing documents] challenging, as happened in this scenario.”
“New Zealand law has well-established principles to deal with these sorts of situations. Importantly, the end result of this process is that Mr Sullivan’s wishes have now been validated.”
Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.
