Broomhall Estate

[2015] NZHC 1349

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-273 [2015] NZHC 1349

IN THE ESTATE

of AGNES MAY BROOMHALL

(deceased)

IN THE MATTER

of an application under s 14 of the Wills

Act 2007

Hearing:

On the papers

(Heard in Auckland)

Counsel:

RG Ewen for applicants

Judgment:

15 June 2015

JUDGMENT OF FAIRE J

Solicitors:           Wynyard Wood, Auckland

Re Broomhall Estate [2015] NZHC 1349 [15 June 2015]

[1]      Application is made pursuant to s 14 of the Wills Act 2007 by Richard Baker and Justin Insley, two persons named as executors and trustees in an unsigned will of Agnes May Broomhall for an order declaring the unsigned will to be a valid will of Agnes May Broomhall.

[2]      An application for directions as to service was made.  Orders were made.  No steps have been taken by the person directed to be served.  The time within which steps are to be taken has expired.

[3]      The beneficiary, Brian James Sullivan, named in the deceased’s prior will, dated 24 October 2007 supports this application.  The application is also supported by Paul Robert Sullivan who, with his brother, are the principal beneficiaries in the unsigned will.

[4]      The Public Trust, the named executor in the prior will of 24 October 2007, advises that it will take no steps in respect of the present application.

[5]      Accordingly, I deal with the matter on the papers.

[6]      Agnes May Broomhall died in hospital on 17 November 2014.   She had instructed Fencible Law, solicitors of Howick, Auckland to prepare a will.   The events which I now set out described what followed.

[7]      The deceased had been in hospital with pneumonia as a result of receiving large doses of chemotherapy.     She was sent home, but was then sent back to hospital.  The initial instructions for her will were given on 3 November 2014.  The solicitor then received a telephone call from the deceased and made handwritten notes of that call.   That led to the will being drawn up of 6 November 2014 and emailed and posted.

[8]      On  11 November  2014  the  deceased  sent  an  email  correcting  the  split between her nephews, Brian and Paul Sullivan, and also directing that a power of attorney be given to Richard Baker.   Alterations were made, which included substitution clauses and inclusion of a bequest which had been earlier authorised.

The amended will was sent to the deceased at 10:15 am on Tuesday, 11 November

2014.

[9]      The deceased was later readmitted hospital but did not sign her will.   She died at 6:30 am on the morning of 17 November 2014.

[10]     Her previous  will,  which  had  been  made on  17 October 2007,  had  been prepared by the Public Trust.   At the time that will was executed, a statement was made which gave reasons why her adopted son was not included in her will.  He has been served but has decided to take no steps in this proceeding.

[11]     Mr Richard Baker visited the deceased on 16 November 2014, when she was in hospital.  The question of her unsigned will was raised and she confirmed that she had not yet signed the document.

[12]     The application is made in reliance on s 14 of the Wills Act 2007.  Section 14 provides:

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.

[13]     The unsigned document is clearly a document which purports to be a will.  It does not comply with s 11 because it has not been signed or witnesses in accordance with the provisions of s 11.

[14]     The issue raised therefore is whether the unsigned document satisfies the court that it expresses the deceased’s testamentary intentions. Affidavit evidence has been provided from the solicitor who took the deceased’s instructions and sent drafts to her.  That affidavit supports the position that the draft will correctly identifies the deceased’s testamentary intentions at the time.

[15]     Affidavits have also been filed by one of the persons who are applicants in this case and who is named as a trustee and executor in the will.  That records his discussion with the deceased on the day before she died, which indicates that she had received the drafts from the lawyer.   Whilst there is no precise evidence of confirmation  of  the  draft,  no  advice  indicating  an  adverse  position  from  that contained in the draft was provided to Mr Baker.  The clear inference here is that the reason why the draft had not been signed was the deceased’s admission to hospital and lack of opportunity to complete the formalities of the execution of the will

[16]     There are no competing claims suggesting that the deceased’s testamentary

intentions were anything other than as expressed in the draft will.

[17]   I am satisfied that the document expresses the deceased’s testamentary intentions.  I am also satisfied that this matter can appropriately be dealt with on the papers.

[18]     Accordingly, I order that the unsigned will of the deceased and attached as

exhibit “G” to the affidavit of Alison Walmsley of Auckland, solicitor, be declared the will of Agnes May Broomhall, of Auckland, retired.

JA Faire J