Bradley
[2023] NZHC 2026
•1 August 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-346
[2023] NZHC 2026
UNDER the Wills Act 2007 IN THE MATTER
of the Estate of COLIN JOHN BRADLEY Deceased
AND
an application to validate a will
Hearing: (Determined on the papers) Counsel:
C L Houghton and C M O’Brien for the Applicants
Judgment:
1 August 2023
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 1 August 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
RE BRADLEY [2023] NZHC 2026 [1 AUGUST 2023]
Introduction
[1] The applicants, Luke David Bradley (Luke) and Patricia Margaret Haren (Margaret), seek an order pursuant to s 14 Wills Act 2007 (the Act) that a document (the document) be declared a valid will of Colin John Bradley (Colin) who died on 22 March 2023. Colin was Luke’s father. Margaret is Colin’s aunt.
[2] This application has been made on the papers without service to any other party.
[3] This is an originating application made without notice on the ground that all persons affected by the application have consented to it.
Background
[4] The document was drafted in the form of a will in February 2023 by Colin’s solicitors, Anderson Lloyd. Colin attended a meeting on 16 February 2023 with Ms Stone, a senior associate of Anderson Lloyd. Ms Stone’s affidavit details her discussion with Colin in relation to his will and his trust. The meeting was prompted by Colin having terminal cancer. At the meeting, Ms Stone told Colin she would prepare a new will as per his instructions and email it to him.
[5] Ms Stone, in her affidavit, recounts discussing with Colin his previous will from 2005 and how she had discussed with him the changes Colin wanted recorded in his new will.
[6] Ms Stone produces the file notes she took during the meeting and a copy of a note that she made subsequently recording in more detail the matters discussed at the meeting. Other than the file note incorrectly recording that the meeting was on 15 February 2023, Ms Stone’s evidence is that her notes are consistent with the document she sent to Colin. Ms Stone’s evidence is that when she met with Colin he was very clear about his wishes.
[7] Ms Stone emailed the document she prepared to Colin on 17 February 2023 along with a new statement of wishes relating to his trust saying: “Once you are happy with everything we can aim to meet next week some time”.
[8] By 14 March 2023 Ms Stone had not heard from Colin and she sent a follow-up email that day. Ms Stone did not hear further from Colin. I note there was only eight days before Colin died.
[9] Ms Stone is not aware of any circumstances indicating that Colin had, after the meeting on 16 February 2023, changed his mind about any of his intentions as to what was to happen with his affairs which might indicate he did not approve either the new will or the statement of wishes. Ms Stone’s evidence is that the document was prepared in accordance with Colin’s instructions and that those instructions, to the best of her knowledge, reflected Colin’s testamentary intentions.
Law
[10] This Court has power to declare a document a valid will pursuant to s 14 of the Act. That section 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.
[11] Here, the requirements of s 14(1) are met. The testamentary document appears to be a will, it came into existence in New Zealand and it does not comply with s 11 of the Act as it was not signed by the will-maker.
[12]Section 11 of the Act provides:
11 Requirements for validity of wills
(1)A will must be in writing.
(2)A will must be signed and witnessed as described in subsections (3) and (4).
(3)The will-maker must—
(a)sign the document; or
(b)direct another person to sign the document on his or her behalf in his or her presence.
(4)At least 2 witnesses must—
(a)be together in the will-maker’s presence when the will- maker—
(i)complies with subsection (3); or
(ii)acknowledges that—
(A)he or she signed the document earlier and that the signature on the document is his or her own; or
(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)each sign the document in the will-maker’s presence.
(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:
(a)that he or she was present with the other witnesses when the will-maker—
(i)signed the document; or
(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)that he or she signed the document in the will-maker’s presence.
(6)No particular form of words is required for the purposes of subsection (5).
Analysis
Without notice application
[13] A preliminary question for consideration is whether the application may be dealt with on a without notice basis.
[14] This application is made on a without notice basis on the ground that all persons who may be potentially affected by the validation of the document have consented to the application.
[15] Pursuant to r 7.46 High Court Rules 2016 I am satisfied the interests of justice allow the application to be determined without it being served. The affected parties are Colin’s daughter, who was a beneficiary under both the 2005 will and the document (albeit with different entitlements under the document) and Colin’s mother, who was executor under the 2005 will. Both Colin’s daughter and his mother have received a copy of the application and had the opportunity to take legal advice. They provided written consent to this application being made and confirmed they do not need to be served with the documents in this proceeding.
[16] Given those concerned had the opportunity to obtain legal advice, have had the nature of the application explained to them and confirmed they do not need to be served, I am satisfied the application may be determined without being served.
Invalidity of the document
[17] As the document was unsigned by Colin, s 11(3) of the Act has not been complied with. The power under s 14 to declare the document a valid will is therefore available.
[18] It is not clear why Colin did not respond either to the email attaching the will or to the follow-up. What is clear is that he did not express any disagreement with the document. It may be inferred that his health deteriorated to the point where it was not practical for him to deal with the completion of the document.
[19] This is not the first time a will has been left unsigned either because the deceased overlooked signing it or became too unwell to sign it. In the case of Re Estate of Hickford, this issue was addressed by MacKenzie J in terms that would generally not support validation in cases where execution of the will document was simply overlooked or forgotten about:1
[9] The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:
(a)That he had changed his mind about making a will;
(b)That he overlooked or forgot about signing the will; or
(c)That he did not think that he needed to do anything further.
[10] I consider that, to meet the statutory test, the case must fall within the third possibility. Clearly, the first possibility would mean that the document did not express his testamentary intentions. In my view, the second possibility might not meet the statutory test. I consider that the third possibility would meet the test. If the deceased thought that he had made an effective will, and that the reason that the document was unsigned was a mistaken view that everything necessary had been done, the Court could be satisfied that the document did express the deceased’s testamentary intentions despite the lack of a signature.
[11] I consider therefore that the question to be determined is whether I can be satisfied, on the balance of probabilities, that the third possibility is the correct one. As the Supreme Court has made clear in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, the balance of probabilities is a single standard, but as a matter of fact, Judges require stronger evidence of some allegations before the issue can be proved to their reasonable satisfaction. I consider that, because of the importance of a declaration that
1 Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.
a will be declared valid, there must be cogent evidence that the document reflects the deceased’s testamentary intentions.
[20] However, MacKenzie J was to later explain these observations. In Re Fraser, the will was unsigned, seemingly because the deceased did not get around to completing the process.2 Validation was found to be appropriate. MacKenzie J observed:
[7] In Re Gladwin v Public Trust, Woolford J upheld a will in somewhat similar circumstances, although in that case the application was opposed. In doing so, Woolford J referred to an earlier judgment of mine in Re Estate of Hickford, where I had referred to three broad possibilities as to why no appointment to sign a will had been made by the deceased. These were:
(a)That he had changed his mind about making a will;
(b)That he overlooked or forgot about signing the will; or
(c)That he did not think that he needed to do anything further.
[8] In stating those possibilities, I did not make it sufficiently clear that I intended to confine my remarks to the circumstances of that case, I did not intend to suggest that those would be the only possibilities which might arise in any case. As Woolford J, in my view correctly, recognised, there are other possibilities. Each case must be considered on its own facts.
[9] I am satisfied that the document prepared in accordance with the deceased’s instructions given on 27 April 2011 expressed the deceased’s testamentary intentions at the time it was drafted. I am satisfied that the lack of signature is not evidence of a change of mind on the part of the deceased. Accordingly, I am satisfied that, at the date of his death, the document expressed the deceased’s intentions.
[21] As Re Fraser indicates, and s 14(2) of the Act requires, the central inquiry here is whether the unsigned will document expresses the deceased’s testamentary intention in the circumstances of each case.
[22] Here, Ms Stone’s evidence establishes that the document correctly represented Colin’s testamentary intention.
Orders
[23]I dispense with service of the proceeding.
2 Re Estate of Fraser HC Napier CIV-2011-441-700, 20 December 2011.
[24] I declare that the document sent by Anderson Lloyd to Colin John Bradley as a draft will on 17 February 2023 is the valid will of Colin John Bradley.
Osborne J
Solicitors:
Anderson Lloyd, Christchurch
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