Application by Butt

[2020] NZHC 3225

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002354

[2020] NZHC 3225

IN THE MATTER OF	Section 14 of the Wills Act 2007
AND IN THE MATTER	of an application by ALLAN BUTT for an order that a document be declared a valid will of the deceased ROY BUTT

Hearing:	On the papers
Judgment:	8 December 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 8 December 2020 at 10.00am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Websterlaw Ltd, Auckland

Application by Allan Butt [2020] NZHC 3225 [8 December 2020]

Introduction

[1]                 The applicant, Allan Butt (“Allan”), has filed an originating application without notice. He seeks an order declaring that an undated and unsigned document, a copy of which he annexes to his affidavit, be declared the valid will of his father, the late Roy Butt, of Auckland.

Background

[2]                 As noted, Allan is the deceased’s son. He is named as the executor in the document he seeks should be declared to be the deceased’s valid will. He is also the deceased’s executor pursuant to a will which the deceased signed on 6 October 2016.

[3]                 Under the 2016 will, the deceased directed that his residuary estate should be split into three equal parts, one for his daughter, Lyn Olsson, if she survived him, and if she did not survive, then for her daughter (the deceased’s granddaughter) Kimberley Olsson. He left the other two parts of his residuary estate to Allan, with provision for substitution of issue in the event that Allan did not survive him.

[4]Lyn Olsson died before her father.

[5]                 The document that is the subject of the application was prepared after and as a consequence of her death. The deceased instructed his solicitor, Peter Langdon, to prepare a new will, to give one quarter of his residuary estate to Lyn’s daughter, Kimberley, one quarter to Lyn’s son, Reuben Olsson, and one half to his own son, Allan.

[6]                 An affidavit has been filed by Mr Langdon. He has explained that at the time he prepared the 2016 will, the deceased did not tell him that Lyn had a son, Reuben. He says that had he been aware of this, he would have explained to the deceased the implications of omitting Reuben as a gift over beneficiary.

[7]                 Mr Langdon went on to explain that, on 22 July 2020, he met with the deceased at his office. The deceased was accompanied by Allan. Mr Langdon says that he spent the first part of the interview with the deceased alone to satisfy himself

that the deceased had full testamentary capacity and that he was not under duress. He formed the view that the deceased was very capable and alert, and that he wished to change his will to ensure that his family was properly provided for. Mr Langdon was informed for the first time that the deceased’s daughter, Lyn, had two children – Kimberley and Reuben.

[8]                 Mr Langdon said that after some 15 or 20 minutes, he and the deceased were joined by Allan and that he then went into some detail explaining to the deceased and Allan the deceased’s obligations under the Family Protection Act. He says that after a lengthy discussion, the deceased gave him firm instructions to prepare a new will, leaving one quarter of his residuary estate to his granddaughter, Kimberley, a quarter share to his grandson, Reuben, and a one half share to his son, Allan.

[9]                 Mr Langdon drafted a will to this effect, and sent it by both email and post to the deceased on 30 July 2020.

[10]              On 8 August 2020, Mr Langdon received an email from the deceased and Allan recording that the deceased understood and accepted the provisions of the draft will, but that he did not want any gift over provision for Kimberley in the event she predeceased him. The deceased directed that in the event that Kimberley predeceased him, Reuben was to receive his sister’s share, and that if neither Kimberley nor Rueben survived him, then their shares should go to Reuben’s children. The deceased said that he wanted the will changed in this respect and that subject to this change, he was looking forward to meeting with Mr Langdon again to sign the will.

[11]              On 12 August 2020, Mr Langdon received advice from Allan that the deceased had had a bad fall and that he was to undergo an operation later that day. At 8.28pm on 12 August 2020, Mr Langdon received a telephone call from Allan advising that the deceased had not survived the operation, and that he had passed away at about 3.15pm that afternoon. Given the deceased’s untimely death, the draft will was not signed.

The application

[12]              Pursuant to s 14 of the Wills Act, the Court can declare a document to be a valid will. The section provides as follows:

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.

[13]              Relevantly, there are four requirements before the section can apply. First, there must be a document. Secondly, the document must appear to be a will. Thirdly, the document must not comply with s 11, and fourthly, the Court must be satisfied that the document expresses the deceased’s testamentary intention.

[14]I am satisfied that each of those requirements is made out in the present case.

(a)There is a document as that word is defined in s 6 of the Act.

(b)The document appears to be a will. It seeks to dispose of property to which the deceased was entitled when he died. It was prepared by the

deceased’s solicitor in Auckland, and acting on the deceased’s instructions.

(c)The document does not comply with s 11 of the Wills Act. It has not been signed and it has not been witnessed by two witnesses.

(d)The document expresses the deceased’s testamentary intentions. It is clear from Mr Langdon’s affidavit that the draft reflects the deceased’s initial instructions. Indeed, the deceased confirmed by email that the draft reflected his wishes, except for one matter, and, as events have transpired, that matter is now immaterial. Both Kimberley and Reuben survived the deceased. It is also clear that the deceased intended to sign the will (once changed) a short time later at the solicitor’s office. This is confirmed by Allan in his affidavit. There is nothing to suggest that the deceased said anything about wanting any further changes or that he was uncertain in any way about the provisions contained in the draft document.

[15]              There is also a clear explanation for the fact that the draft was not executed – namely that the deceased died unexpectedly before he was able to sign the will. He had a stable medical history and he had not been hospitalised for some 10 years. He was admitted to hospital after breaking his leg in a fall, and he then suffered a heart attack. His condition nevertheless stabilised sufficient for him to undergo surgery on his leg. Unfortunately, he suffered two further heart attacks during the operation, one of which was fatal.

[16]              I am mindful that consents have been signed by all persons affected by the application. Allan receives less under the draft will than under the 2016 will; he is the applicant. Kimberley also receives less under the draft will than under the 2016 will; she consents to the application. So does Reuben. He is the only person who receives more under the draft than under the 2016 will. He was not included in the 2016 will at all.

[17]              I am satisfied that the jurisdiction conferred by s 14 should be invoked in this case and that it is appropriate to make an order that the undated document the subject of the application and attached to the affidavit of the applicant, Allan Butt, filed in support of the application, be declared valid as the last will of the deceased, Roy Butt. I so order.

[18]              It is also appropriate to grant leave allowing the application to proceed without notice to any other person. All persons who could be affected have consented to the order sought.

[19]The draft order submitted with the application is approved.

Wylie J