BETWEEN RONALD EDWIN BOUWHUIS Applicant AND EMILY JOY BOUWHUIS First Respondent JOSHUA ZAK BOUWHUIS Second Respondent

[2023] NZHC 3195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2174

[2023] NZHC 3195

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of the Estate of Janine Margaret O’Hearn

BETWEEN

RONALD EDWIN BOUWHUIS

Applicant

AND

EMILY JOY BOUWHUIS

First Respondent

JOSHUA ZAK BOUWHUIS

Second Respondent

Hearing:

9 November 2023

Appearances:

J M Perry for Applicant

No appearance by or on behalf of Respondents

Judgment:

13 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 13 November 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Braun Bond & Lomas Limited (T M Braun and J M Perry), Hamilton

BOUWHUIS v BOUWHUIS [2023] NZHC 3195 [13 November 2023]

[1]                 Ronald Edwin Bouwhuis applies for an order that a document dated 27 May 1999 be declared valid as the last will of his deceased wife, Janine Margaret O’Hearn. The document is one of two mirror wills completed by the applicant and his wife in which each left their residuary estate to the other spouse. In the event that their spouse predeceased them, the residuary estate was left to a trust set up for their two children. The document is not a valid will because his wife’s signature is witnessed by only one person, rather than the two required by the Wills Act 2007 (the Act).

[2]                 The first and second respondents to the application are the two now adult children as the only other persons having any possible interest in the deceased’s residuary estate. They were served with the application on 2 October 2023. No documents in opposition have been filed.

Background

[3]                 Ms O’Hearn died suddenly in Auckland on or about 25 November 2019 of an aneurysm. The applicant is the husband of the deceased. They were married in Australia in 1983 and were together for 36 years.

[4]                 Mr Bouwhuis explains that he and his wife decided to make wills in or around 1997. They started the process when they were living in the United States of America and about to return to New Zealand. Mr Bouwhuis recalls that the computer they had purchased in the USA had software on it for making wills. He says that he and his wife drafted mirror wills together following the prompts on the software. They did not have legal advice.

[5]                 Mr Bouwhuis says that they completed the wills in New Zealand in 1999 and had them witnessed by one of their friends. They had no idea at a time that they needed two witnesses for the wills to be considered valid.

[6]                 With respect to the contents of their wills, Mr Bouwhuis says he and his wife always had the understanding that if one of them died, the other would get everything. They trusted each other to carry on and continue to raise the children as they had been. They also trusted each other to make good life choices with respect to what they

owned. The will simply reflected that trust – there was no “yours” or “mine” in anything they owned.

[7]                 Mr Bouwhuis says that his wife did not give any indication she wanted to make specific gifts or legacies at the time she made her will. If she had, these would have been recorded in the will. They agreed that they would make mirror wills where everything went to the other spouse, trusting that the surviving party would deal with their assets appropriately.

[8]                 Mr Bouwhuis says that he and his wife did not update the wills because they just did not think about it. They would have updated them if they had known that they needed two witnesses. They just assumed that if one of them died, the other would get everything and if they both died, the children would. Apart from the family getting older and his wife passing away, there have been no other real changes in their life. The children are currently working in Australia, but Mr Bouwhuis still resides in the same family home in Devonport.

[9]                 Mr Bouwhuis says he has made full enquiries and searches for an earlier or later will made by his wife. He is satisfied that his wife did not execute an earlier or later will and if the document, the subject of his application, is not declared to be a valid will, his wife will be wholly intestate.

[10]              To the best of his knowledge, information and belief, Mr Bouwhuis says the gross value of the estate left by his wife does not exceed $3 million. The persons with a beneficial interest in the estate of his wife on intestacy are himself and their two children, both of whom are adults.

[11]              Mr Bouwhuis says he is entitled to succeed on the intestacy and his beneficial interest in the estate is not affected by s 12(2) of the Matrimonial Proceedings Act 1963 (as applied by s 191(3) of the Family Proceedings Act 1980) or by s 26(1) of the Family Proceedings Act 1980. He has no intention of choosing Option A under s 61 of the Property (Relationships) Act 1976. His wife was not survived by a de facto partner entitled to succeed on intestacy. Their two children are children to whom

neither s 16(2)(d) of the Adoption Act 1955, nor s 4 of the Status of Children Act 1969 is relevant or applies.

[12]              His wife was not survived by any other child who was born to her or was adopted by her.

[13]              Mr Bouwhuis says he has made reasonable enquiries for the purposes of the Status of Children Act 1969 as to the existence of a parent or child of his wife, in addition to those already known to him, who could claim an interest in the estate by reason only of that Act and the enactments governing distribution of intestate estates. Those enquiries, which included those required by s 5A(2) of the Status of Children Act 1969 consisted of causing a search to be made of the Registrar of Instruments, Declarations and Orders maintained by the Registrar General pursuant to s 9 of the Status of Children Act 1969 and looking through his wife’s papers that had come to his notice in the course of searching for a will made by her. He did not discover any parent or child through his enquiries.

Legal principles

[14]              Section 8(1) of the Act sets out the meaning of a will. It includes a document made by a natural person which disposes of property to which the person is entitled when he or she dies.

[15]              Section 11 sets out the requirements for a valid will. These include that it must be in writing, signed by the will-maker and witnessed in the manner required by       s 11(4).

[16]              Under s 14, the Court may declare a document that does not comply with s 11 to be a valid will if it is satisfied the document expressed the deceased person’s testamentary intentions. Section 14(3) provides that in considering whether to declare the will valid, the Court may consider the document itself, evidence on the signing and witnessing on the document, evidence of the deceased person’s testamentary intentions and evidence of statements made by the deceased.

[17]              The approach to the application of s 14 was helpfully summarised by McKenzie J in Re Beaumont and Re Campbell:1

(a)great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;

(b)under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;

(c)the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant considerations;

(d)where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect in preference to intestacy; and

(e)there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, the balance of probabilities.

[18]              The Court has previously been prepared to grant validation applications where there is evidence the deceased overlooked or forgot to sign the will, believed they were not required to do so, or simply did not manage to sign the will before they died.

Analysis

[19]              I am satisfied that the document entitled “Last Will and Testament of Janine Margaret O’Hearn” which was signed by her on 27 May 1999 and witnessed at the same time by a friend, Kerry McMullan, is a genuine expression of her testamentary wishes. The deceased has also added in her own handwriting an extra provision about care of their children if she and her husband died simultaneously.

1      Re Beaumont [2013] NZHC 2719 at [11]; and Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].

[20]              The deceased clearly intended that her residuary estate would be distributed to her husband if he survived her. If he did not survive her, then her residuary estate would be distributed to two named trustees, Ngaire Lange and Ian Bold, to be retained, managed and distributed under the provisions of a trust for their children, which was set up in the same document.

[21]              The deceased and her husband, the applicant, prepared the document using the software provided with a computer they had purchased while living in the United States of America and completed it in 1999 once they had returned to New Zealand. The deceased’s husband also prepared a mirror will for himself. The template provided for by the software did have provision for two witnesses, but the deceased and her husband were completely unaware of the requirement in s 11 of the Act for at least two witnesses. They did not seek legal advice.

[22]              The deceased could not have made her testamentary intentions much clearer. It is better that these intentions be given effect in preference to intestacy.

[23]              Mr Bouwhuis has made extensive enquiries to ascertain whether or not there may be an earlier or later will or whether there may be other interested parties. His enquiries have proved fruitless. I am satisfied that there are no interested parties apart from the deceased’s husband and their two adult children. The deceased’s husband is the applicant and there is no opposition from their children.

Result

[24]              In all the circumstances, the application is granted. There will be an order that the document entitled “Last Will and Testament of Janine Margaret O’Hearn” and dated 27 May 1999, a copy of which is marked “A” and attached to the affidavit of Mr Bouwhuis filed in support of the application, is declared to be the valid will of the deceased.

[25]There will be no order as to costs.

Woolford J