Campbell

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-000161 [2012] NZHC 1608

UNDER the Wills Act 2007 and Rules 7.9 and 19.5 of the High Court Rules

IN THE MATTER OF of the Estate of RAIHA CAMPBELL BETWEEN STEPHANIE MARIE CAMPBELL AND
STEPHANIE MARIE STOWE
Applicants

Hearing: On the Papers

Counsel: JGA Day for Applicants

Judgment: 6 July 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 6 July 2012 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
JGA Day, Law North Limited, Kerikeri: gad@lawnorth.co.nz

ESTATE OF R CAMPBELL HC WHA CIV-2012-488-000161 [6 July 2012]

[1] The applicants have applied for an order under s 14 of the Wills Act 2007 (“the Act”) declaring that a document executed by the deceased, Raiha Campbell, in March 2011 (“the 2011 document”) is a valid will.

[2] On 18 February 2009, the deceased executed a will (“the 2009 will”) naming the applicants as joint executrixes and trustees. The 2011 document was signed by the deceased in March 2011, her signature being witnessed by one witness, a homecare worker who assisted the deceased prior to her death. The deceased died on 31 March 2011, but the 2011 document was not dated, nor witnessed by a second witness as the Act required. [1] Accordingly, the document is not a valid will.

[1] Wills Act 2007, s 11(4).

[3] The 2011 document differs from the 2009 will only in one respect. The 2011 document provides that a one-fifth share in the residuary estate, which in the 2009 will had been bequeathed to one of the deceased’s granddaughters (TC) on trust, was to be bequeathed absolutely to TC.

[4] The 2011 document was prepared as a will by the deceased’s solicitors in January 2011, following her instructions, on the basis that the deceased then believed her granddaughter to be sufficiently mature to receive her share of the estate absolutely. There is no question that the 2011 document represents the deceased’s wishes as expressed shortly before her death.

[5] All interested parties have been served with the application and there is no opposition to the order sought.

[6] Accordingly, I declare pursuant to s 14 of the Act that the undated document prepared in January 2011 and signed by Raiha Campbell in March 2011, and witnessed by Maree Therese Yovich, is the valid will of Raiha Campbell formerly of Kaeo.

................................................

Toogood J

CaseChat Overview and Summary

The case involves the applicants, Stephanie Marie Campbell and Stephanie Marie Stowe, seeking a declaration that a document executed by the deceased, Raiha Campbell, in March 2011 is a valid will. The document, referred to as the 2011 document, was prepared by the deceased's solicitors in January 2011 based on her instructions. The applicants argue that this document should be recognised as the deceased's valid will despite it not being dated and lacking a second witness, unlike the 2009 will that the deceased executed on 18 February 2009.

The central legal issue before the court was whether the 2011 document could be declared a valid will despite its procedural deficiencies. Under section 11(4) of the Wills Act 2007, a will must be dated and witnessed by at least two witnesses. The court needed to determine if the Act's requirements could be relaxed to accommodate the deceased's clear intention as expressed in the 2011 document. Given that the 2011 document was prepared in accordance with the deceased's wishes and there was no opposition to the application, the court considered the balance between strict compliance with statutory requirements and the recognition of the deceased's intent.

The court concluded that despite the procedural shortcomings of the 2011 document, it was appropriate to declare it as the valid will of Raiha Campbell. The court found that the document represented the deceased's wishes as expressed shortly before her death and that all interested parties supported the application without opposition. The court's judgment emphasised the importance of recognising the deceased's intent and the absence of any prejudice to interested parties if the 2011 document was declared a valid will.

The final order of the court was that the undated document prepared in January 2011 and signed by Raiha Campbell in March 2011, witnessed by Maree Therese Yovich, was declared to be the valid will of Raiha Campbell. This declaration allows for the administration of the estate in accordance with the deceased's wishes as expressed in the 2011 document.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established