Bonner

[2024] NZHC 3390

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-527

[2024] NZHC 3390

UNDER

the Wills Act 2007

IN THE MATTER

of an application to declare a document a valid will

DEBORAH ANN BONNER

Applicant

Hearing:	11 November 2024
Counsel:	S F Gifford for Applicant
Judgment:	14 November 2024

JUDGMENT OF OSBORNE J

Introduction

[1]                 The applicant, Deborah Bonner, seeks an order under s 14(2) Wills Act 2007 (the Act), declaring a document (Document) to be valid as the last will of Peter Stuart (the Deceased).

Facts

[2]                 The relevant facts are set out in affidavits of a solicitor, Shona Senior, who took the Deceased’s will instruction and of the executor, Deborah Bonner, named in the Document.

[3]                 The Deceased requested Ms Senior to attend his home in Kaiapoi to take instructions regarding changes to his then current will, dated 10 November 2023 (the

RE BONNER [2024] NZHC 3390 [14 November 2024]

Previous Will). Mrs Senior (a solicitor specialising in private client and elder law) attended the Deceased’s home on 7 May 2024. Mrs Senior deposes to taking comprehensive will instructions from the Deceased at that meeting and being fully satisfied that the Deceased had testamentary capacity to execute a new will.

[4]                 Mrs Senior was scheduled to return to the Deceased’s home with a colleague on 13 May 2024 to execute the newly prepared will. However, the Deceased’s health deteriorated rapidly following the meeting on 7 May 2024, and the Deceased was, in the intervening period, admitted to hospital.

[5]                 Mrs Senior deposes to attending on the Deceased at Christchurch Hospital on 13 May 2024, rather than his home as planned. She was not, however, satisfied that the Deceased had testamentary capacity at that time. The newly prepared will document therefore remains unsigned.

[6]The Deceased died the next day on 14 May 2024.

The Will

[7]                 The only changes to the bequests from the Deceased’s Previous Will dated 10 November 2023 and the Document, are:

(a)To increase Deborah Ann Bonner’s legacy to $20,000 from $15,000 and to remove the gift of a motor vehicle.

(b)To increase Carol Ann Roberts legacy to $20,000 from $10,000.

(c)To remove a legacy to Jillian Joy Smith of $5,000.

(d)To reduce the legacy to Vicki Alice Breeze from $25,000 to $15,000.

(e)To reduce the legacy to Barry Robert Stuart from $25,000 to $15,000.

(f)To make a gift of the motor vehicle to Janice McFarlane.

(g)A clause giving beneficiaries the option to nominate a trust to be beneficiary in place of the named beneficiary.

[8]This is confirmed in the affidavit of Mrs Senior in support of the application.

[9]                 Both the Previous Will and the Document otherwise dispose of the Deceased’s assets in an identical manner and appoint Deborah Bonner as executor and trustee of the estate.

[10] Several of the beneficiaries referred to at [7] above provided their consent to the making of the order now sought. The remaining three beneficiaries were served with the proceeding and have taken no steps.

Legal principles

[11]              Section 14 of the Act provides that the High Court may make an order declaring a document to be a valid will if it is satisfied the document expresses the deceased person's testamentary intentions. Such orders can be made in respect of documents that appear to be a will but do not comply with s 11. In determining whether to make such an order, the Court may consider: the document; evidence concerning the signing and witnessing of a document and the deceased person's testamentary intentions; and evidence of statements made by the deceased.

Discussion

[12]              Section 11 of the Act sets out the requirements of a valid will. The Document falls short of those requirements in that it was not signed by the deceased (or signed by someone directed by the deceased to do so on his behalf) or witnessed.

[13]              Nevertheless, I am satisfied that the Document reflects the Deceased's testamentary intentions. This is the clearest case of firm instructions for the preparation of a comprehensive will which were unable to be carried into effect as the testator intended. The draft will represents the Deceased’s testamentary intentions.

Result

[14]              I declare that the Document annexed as exhibit “A” to the affidavit of Deborah Bonner dated 26 September 2024 is valid.

Osborne J

Solicitors:
Aspiring Law Limited, Christchurch