Barker v National Heart Foundation of New Zealand
[2018] NZHC 1444
•15 June 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000777 [2018] NZHC 1444
UNDER the Wills Act 2007 BETWEEN
CELIA GILLIAN BARKER and PETER CHRISTOPHER EASTGATE
Applicants
AND
THE NATIONAL HEART FOUNDATION OF NEW ZEALAND
Respondent
Hearing: On the papers Counsel:
A J F Wilding and J V Ormsby for the Applicants R M Gapes and H G Holmes for the Respondent
P Whiteside QC for the Cancer Society of New Zealand
Judgment:
15 June 2018
JUDGMENT OF NATION J
[1] Mr Lindo Arthur Williams made a will on 5 March 2010. He left the residue of his estate to his brother, Martin. If his brother died before him, then he left the residue to the National Heart Foundation of New Zealand. Martin Williams died.
[2] Lindo Williams then saw a solicitor from the firm both he and Martin Williams had previously used. This solicitor prepared a new detailed will in which he made a number of specific requests and significant gifts to various charities, including $1 million to the Cancer Society of New Zealand. There was no longer any gift to the National Heart Foundation. Lindo Williams died before signing that will.
BARKER & EASTGATE v NATIONAL HEART FOUNDATION OF NZ [2018] NZHC 1444 [15 June 2018]
[3] In these proceedings, the solicitors appointed under his last signed will seek an order, pursuant to s 14 Wills Act 2007 (the Act), declaring the unsigned will to be the valid will of the late Lindo Arthur Williams.
[4] The application is not now opposed. I am satisfied it is appropriate for the orders sought to be made.
[5] Counsel for the applicant Mr A J F Wilding, and Mr P F Whiteside QC counsel for the Cancer Society, with the consent of Mr R M Gapes counsel for the Heart Foundation, have most helpfully and succinctly explained in a memorandum why it is appropriate for the orders to be made. In the circumstances, I can do no better than to essentially reproduce their memorandum in this judgment.
Background
[6] The proceeding was directed to be served on those who might be affected. Service has been effected. With two exceptions, all of those directed to be served have either taken no steps, agreed to abide the decision of the Court or have consented to the application. The two exceptions are:
(a) the Cancer Society of New Zealand Incorporated, which supports the application; and
(b) the National Heart Foundation of New Zealand, which formerly opposed the application.
[7] The proceeding had been set down for hearing on 19 June 2018. The Heart Foundation then elected not to oppose the application. Both the Heart Foundation and the Cancer Society now consent to the orders sought.
The law
[8] Section 11 of the Act requires that a will be in writing, signed by the testator and properly witnessed. Section 14 of the Act confers on the Court a discretion to declare valid a document which does not meet those requirements. It states:
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.
[9] The courts take a robust approach to s 14. In The Estate of Feron, Whata J stated:1
[11] In Re Estate of Murray MacKenzie J helpfully essays a number of authorities dealing with s 14. Those authorities illustrate that a robust approach to the application of s 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14 (2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.
[10] The overwhelming majority of applications are dealt with on the papers, without opposition and are successful. In Wardill & Pasley, Palmer J observed:2
[13] In a useful article published in 2013, Professor Nicola Peart and Mr Greg Kelly analysed more than forty cases invoking s 14 since the Act came into force.4 I agree with them that the purpose of the validation power is “to give effect to the will-maker’s ascertainable intentions in whatever written form they may be found”.5 As they also observe, based on the Law Commission report, “there can be little doubt that the main purpose of the
1 The Estate of Feron [2012] NZHC 44.
2 Wardill & Pasley [2016] NZHC 3114.
formalities [in s 11 of the Act] is to authenticate a document as an expression of the deceased’s genuine testamentary intentions”.6
[14] All of the applications analysed by Peart and Kelly were successful, though only two were opposed. Of the 41 cases they analysed, 14 were neither signed nor witnessed.7 Six involved a professionally drafted will the deceased did not see before death. In all of those cases the Court was satisfied the draft will accurately reflected the deceased’s instructions.8 In one case, Re Feron, the Court validated a will based on a solicitor’s notes rather than a full draft.9 In 2014 MacKenzie J also noted the Solicitor-General’s identification of approximately 80 applications under s 14, of which only two had been refused.
[11] Delay of several years between the relevant document and death has not been disqualifying but, in some cases, could signal a changed intention.3
[12] The existence of a subsequent document of which validation is sought generally indicates that the testator does not wish for the disposition under the existing will to take place.4
The evidence
[13] Lindo had a brother, Mr Martin Williams. Their wills were drafted by Cavell Leitch and each will showed similarities. Lindo’s will was dated 5 March 2010.
[14] Martin and Lindo appointed each other as their executors and trustees. If one predeceased the other then the applicants, at that stage both partners in Cavell Leitch, lawyers, were to be the executors and trustees.
[15] Martin died on 23 March 2016. This appears to have been a catalyst for Lindo to change his will.
[16] On 5 August 2016, Lindo mentioned changing his will during a conversation with Ms Maria Young, a partner with Cavell Leitch, in the context of the administration of Martin’s estate. He also mentioned this to Ms Danielle Coldicott, an estates manager with Cavell Leitch. On 22 March 2017, he arranged to meet Danielle for that purpose.
3 Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706; Gladwin v Public Trust (Re Cairns) [2011] 3 NZLR 566; Tamarapa v Byerley [2014] NZHC 1082.
4 See Re Estate of Campbell, above n 3, at [18]; Winterburn v Wilson [2016] NZHC 1422.
[17] The meeting occurred on 30 March 2017. Lindo gave detailed instructions regarding a new will. The process included Lindo and Danielle discussing each part of Lindo’s will of 5 March 2010 and changes being recorded.
[18] A will was drafted in accordance with Lindo’s instructions and posted to Lindo on 4 April 2017. Danielle sought to follow that up by phoning Lindo in May and June 2017. The calls were unanswered. Messages were not left because Lindo did not have an answering machine. Lindo died on 25 June 2017.
[19] Relevantly, the draft will includes five specific legacies for different amounts, a bequest of a specified property to a relative, with a substitution for another relative in the event of the first-named relative predeceasing Lindo. The provisions of the draft will are consistent with Lindo having taken particular care over what should happen with his estate after his brother Martin’s death.
Was there testamentary capacity?
[20] There is no live issue regarding testamentary capacity at the time instructions were given for the draft will. Lindo was able to give voluntary instructions and knew the size of his estate. He had specific gifts he wished to make. He was able to discuss with Danielle the aspect about which he was undecided, being how to treat the Heart Foundation. There was nothing to indicate a lack of capacity to Danielle.
[21] Lindo was under the close care of his general practitioner, Dr Sophia Harris, who saw Lindo shortly before and not long after he gave instructions for the unsigned will, in particular, seeing him on 29 March 2017 and 20 April 2017. Dr Harris describes Lindo as presenting with physical not cognitive health issues. In her affidavit she states:
31. My dealings with him gave me plenty of opportunity to form an opinion about whether Lindo was suffering from any significant decline in his cognitive and executive functioning and memory. Based on my observations of Lindo he was not. For example, he could always explain to me why he had come to see me and his symptoms and have relatively detailed discussions about relevant health issues. He was able to follow advice. He did not demonstrate a lack of insight into his health.
32. I did not detect symptoms of dementia.
[22] From May 2017 to the time of his death, Lindo spent some time in hospital, during which time there were indications of cognitive decline. However, there is no evidence they existed or were operative earlier. Dr Harris states:
My opinion of Lindo’s capacity to make a will
42. I understand that to have capacity to make a will a person ought to:
(a)understand the nature and effect of making a will;
(b)understand the extent of his or her estate;
(c)understand the claims of those who might expect to benefit under the will.
43. I was not asked to undertake an assessment of Lindo’s capacity to make a will during his life, therefore I did not do so. However, there was nothing to indicate to me when I saw Lindo in March and April 2017 that he would not have had capacity then.
[23] It seems likely that, with all of the physical and end-of-life issues Lindo was facing, he overlooked the signing of the draft will. In the months preceding his death, Lindo mentioned to a close friend, Mr Garry Martyn, that he was changing or had changed his will.
Conclusion
[24]I make orders as follows:
(a) the unsigned will, being annexure H to the affidavit of Danielle Coldicott dated 22 September 2017, is declared to be the valid will of Lindo Arthur Williams, late of Christchurch; and
(b) there is no order for costs.
Solicitors:
P F Whiteside QC, Barrister, Christchurch AJF Wilding, Barrister, Christchurch Wynn Williams, Christchurch
Simpson Grierson, Auckland.
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