Burrows

[2016] NZHC 1686

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-435 [2016] NZHC 1686

UNDER	the Wills Act 2007
IN THE MATTER	of the Estate of OLIVEENA PUATA also known as LILLIAN OLIVINA BURROWS
AND
IN THE MATTER	of an application for an order under section 14 of the Wills Act 2007 declaring an unsigned Will valid by SHYNE FRANCIS BURROWS and KIRI-ANA MARIE BURROWS

Hearing:	On Papers
Counsel:	C M Quin for Applicant
Judgment:	22 July 2016

JUDGMENT OF SIMON FRANCE J

[1]      This is an application under s 14 of the Wills Act 2007 for an order declaring an unsigned will to be a valid will.  The first three requirements of s 14 are not in issue.  It appears to be a will, it was prepared in New Zealand and it does not comply with s 11 because it is unsigned.  At issue is the fourth requirement, namely that it expresses the testator’s intention.

[2]      Ms Puata visited her lawyer on 18 August 2015 and gave instructions for a will, as well as obtaining advice on relationship property issues.  Ms Puata advised she did not have a will.  She was in a de facto relationship.  Their relationship home

was in the name of her partner who appeared to be developing dementia.

BURROWS [2016] NZHC 1686 [22 July 2016]

[3]      A will was prepared in accordance with Ms Puata’s instructions.   Ms Puata asked that the will not be sent to her home, but rather she would come in and sign it when it was ready.  Ms Puata was advised on 15 September that the will was ready. She  had  yet  not  made  an  appointment  to  sign  it  at  the  time  of  her  death  on

2 December 2015.

[4]      The will is an orthodox document that leaves everything equally to her three children.  No provision is made for her de facto partner but as noted the relationship home was in his name and it was apparent that he was becoming unwell.  Evidence has been filed confirming his incapacity.

[5]      The only issue that arises here is the period of ten weeks during which Ms Puata knew of the readiness of the will, but did not come in to sign it.  There is no  doubt  the  draft  will  reflected  her  intentions  in  August 2015,  but  had  they changed?   In Re Greathead (dec’d) the validated will had been unsigned for three

years.1   However, there was evidence that Mr Greathead had seen the draft will and

expressed his satisfaction with it.  He had not signed it because his wife was unsure about the contents of her own will, and Mr Greathead agreed to wait until his wife was ready.  He then never signed it.  Obviously the gap is longer there but there is a repeated declaration of his intentions and an explanation why it was not signed.

[6]      In Loffhagen v Paterson the deceased had made two recent appointments to sign the will but for good reason had not been able to keep them.2   The case does not assist here.

[7]      I am satisfied that the unsigned will represents Ms Puata’s intention at the date of her death.  I am influenced by the fact that the unexplained delay is only ten weeks.   The desire for the will not to be sent to her home does not mean in the circumstances she was ambivalent.  There is no evidence of any relevant events that may have induced a change of heart on her part and accordingly I consider I am able

to infer the contents of the unsigned will remained her intentions.

1      Re Greathead (dec’d) [2015] NZFLR 127.

2      Loffhagen v Paterson [2016] NZHC 1178.

[8]      An order is made declaring the unsigned will of Ms Puata, prepared on her

instructions given in August 2015, to be a valid will.

Simon France J