Campbell

[2012] NZHC 979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-001661 [2012] NZHC 979

IN THE MATTER OF      The Estate of JEFFIE ISABELLA CAMPBELL of Auckland, widow, deceased

Hearing:         On the papers

Judgment:      10 May 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 10 May 2012 at 11:00 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

Solicitors:           Robb & Brown, P O Box 2699, Auckland

Fax: [phone]
S W M Piggin, P O Box 6456, Auckland

Fax: [phone]

CAMPBELL HC AK CIV-2011-404-001661 [10 May 2012]

[1]      This proceeding concerns an application for probate in common form of the will of Jeffie Isabella Campbell, who died on 24 January 2011.  The applicants are Jocelyn Margaret Pratt and Philip James Lanigan who are the executors and trustees under the will in respect of which probate is sought, this being a will signed by Ms Campbell on or about 7 November 2010.   This will is the first of three in identical terms that Ms Campbell signed.  Initially, probate was sought in respect of the third of those documents but after enquiries revealed that the two later documents had not been properly witnessed the present, amended, application was filed in respect of the first will.

[2]      The circumstances in which the various documents came to be signed are explained in affidavits sworn by Mrs Pratt (Ms Campbell’s niece) and Mr Lanigan (Ms Campbell’s solicitor) and by Mr Pratt (Mrs Pratt’s husband) and John Dykes (a witness to the will signed on or about 7 November 2010.  Counsel, Mr Piggin, has provided a memorandum outlining the basis for the application.

Background to application

[3]      Ms Campbell was a resident at the Selwyn Retirement Village, as was her sister, Ailsa Jones.  In 2005 Ms Campbell made a will which contained a number of legacies, including one of $50,000 to her sister.  In late 2010, however, she told Mrs Pratt that she wished to change her will by deleting that particular legacy.

[4]      In her affidavit Mrs Pratt explains that Ms Campbell told her that Ailsa Jones had recently deleted an identical bequest to Ms Campbell in her own (Ailsa Jones’) will.   The sisters  had  discussed  the matter  and  both  were of the view that,  as residents of Selwyn Village, the survivor of them would not receive any personal benefit from such a legacy because the amount would be spent on resthome fees. Mrs Pratt relayed the instructions to change to Mr Lanigan.

[5]      There followed the series of events that has produced the three documents in identical terms.  Mr Lanigan sent a draft will on 4 November 2010.  This is the will in respect of which probate is now sought.   Mrs Pratt and her husband visited Ms Campbell on 7 November 2010.   Mr Pratt found two people at the Selwyn

Village whom he asked to be witnesses.   One was Mr Dykes who was visiting a relative.  Mr Dykes has deposed that Ms Campbell signed the will in his presence and in the presence of another witness and then both the witnesses signed in the presence of one another and Ms Campbell.  Mr Dykes has deposed that before Ms Campbell signed the will she read the will in his presence and seemed to have full knowledge of its contents.

[6]      The other witness, who has not provided an affidavit and who appears from Mr Dykes’ and  Mr Pratt’s affidavits to have been female, signed  her name “G McKenzie” and gave her address as “Kerridge House, Selwyn Village, Pt Chevalier”. Mrs Pratt has made enquiries of Selwyn Village and ascertained that the name of the witness was in all likelihood Gwen McKenzie, a resident of the village.  However, Mrs Pratt has been told by staff of Selwyn Village that Gwen McKenzie does not recall and would deny being a witness.

[7]      The reason that subsequent wills were signed was  that the 7 November 2010 will was not properly dated (the actual day in November was not inserted) and neither Ms Campbell nor the witnesses had initialled the first page.  Mr Lanigan was concerned that this might later result in extra work to obtain a grant of probate and therefore prepared an identical copy of the will and posted it to Ms Campbell under a covering letter 23 November 2010 with instructions for execution.  He later received that document back through the post but noted that, again, the specific day had been left blank and that there were only two sets of initials on the first page.  He prepared a third copy and posted it to Ms Campbell.  He eventually received this document which appeared to have been correctly initialled, signed, witnessed and dated.

[8]      It is the third will in respect of which probate was sought.  But following a requisition from the Registrar requiring affidavit evidence that the deceased thoroughly understood the will and had full knowledge of its contents when executed Mr Lanigan made further enquiries.   At that point it emerged that Mrs Pratt, not realising the importance of correct execution and witnessing of the will, had simply arranged for her aunt to sign each of the documents and (unable to locate a witness at Selwyn Village) asked friends of hers at a later time to witness her aunt’s signature.

[9]      Having  considered  all  of  the  evidence  I  am  satisfied  that  the  will  that Mr Lanigan sent to Ms Campbell under cover of his letter 4 November 2010 was signed and witnessed on 7 November 2010 in the manner required by s 4 of the Wills Act 2007.  The fact that the first page was not initialled detract from that.  I am also satisfied  that  Ms  Campbell  did  thoroughly  understand  the  will  and  had  full knowledge of its contents.

[10]     The only outstanding matter is Ms Jones’ position.  Mr Lanigan has contacted Ms  Jones’  daughter  and  attorney,  Mrs  Pamela  Jay.    Subsequently,  Mrs Jones’ solicitors, Schnauer & Co, advised that:

Mrs Jones advises that she is not willing to sign the consent drafted by you

… We trust that the matter of Mrs Campbell’s will will be resolved in due

course.

[11]     Following a request for confirmation that Mrs Jones did not wish to oppose the grant of probate or wish to be a party to the probate application Schnauer & Co advised:

… Our instructions are that Mrs Ailsa Jones does not wish to be involved in this matter.  Accordingly we are unable to provide you with a letter advising that Mrs Jones does not oppose the grant.

We are authorised to accept any service and to accept any proceedings on

our client’s behalf.

[12]     The present application has been brought without notice.  However, counsel has expressed caution as to the residual possibility that, despite these responses, Mrs Jones might be or might consider that she is affected by the application.  Orders are therefore sought that:

(a)      The amended application be served on Ailsa Jones by service on her solicitor Schnauer & Co; and

(b)In the event that Ailsa Jones within 14 days of service takes no steps to oppose the amended application for probate, then probate in common form of the will of the deceased made on 7 November 2010 shall be granted to the applicants Jocelyn Margaret Pratt and Philip James Lanigan.

[13]     I consider that these orders are appropriate.  Given Mrs Jones’ attitude to date

it seems unlikely that she will take steps, but it is possible.   I therefore make the orders in the terms sought and direct that service be undertaken within 14 days.

P Courtney J