Clark HC Whangarei CIV 2011-488-000397
[2011] NZHC 609
•30 June 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2011-488-000397
IN THE MATTER OF The Wills Act 2007
BETWEEN BEVERLEY ANN MARRIOTT CLARK (DECEASED)
Hearing: (On the papers)
Counsel: J Wickes for the Applicants
Judgment: 30 June 2011 at 4:00 PM
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 30 June 2011 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution:
Arthur Loo: [email protected]
BEVERLEY ANN MARRIOTT CLARK (DECEASED) HC WHA CIV 2011-488-000397 30 June 2011
[1] Terri Maree Thompson, Paula Anne Brake, Dean Christopher Monk, originating application seeking an order that a document dated 10 June 2010 is the valid will of the late Beverley Ann Marriott Clark.
[2] Mr Clark was the deceased’s husband. Each of the other applicants are the
deceased’s children.
Background
[3] Mrs Clark died on 12 June 2010 at the North Haven Hospice in Whangarei.
[4] Mrs Clark was married twice, the first time to a Peter Monk. There were four children of that marriage, namely Ms Thompson, Ms Brake, Mr DC Monk and Mr GM Monk.
[5] Before that marriage, the deceased had a child to Mr Clark. That child was
Ms Black. She was adopted out shortly after her birth.
[6] Ms Thompson, who is a solicitor, has deposed that, to the best of her knowledge, her mother had no other children.
[7] The marriage between Mrs Clark and Mr Monk lasted 26 years. It came to an end when Mr Monk died in November 1986.
[8] Seven years later Mrs Clark remarried. Her second husband was Mr Clark. He has survived his wife. As noted above, he is the biological father of Ms Black.
[9] Two days before her death, on 10 June 2010, Mrs Clark expressed a wish to make a will. She dictated her wishes and a nurse at the Whangarei Hospital, a Ms Walters, prepared the document the subject of this application. After the document was written out, Mrs Clark read it and then signed it. There were two nurses present, Ms Walters and a Ms McCartain. They both witnessed Mrs Clark’s execution of the document.
[10] In the document, Mrs Clark named Ms Thompson as the Chief Executor. Three other executors were named – Ms Brake, Mr DC Monk and Mr GM Monk. All executors were named as beneficiaries of the deceased’s assets along with Ms Black and Mr Clark.
Procedure Adopted
[11] The application has been filed as an originating application.
[12] There is no specific procedure prescribed for the making of applications under s 14 of the Wills Act 2007. The Court has, on a number of occasions, considered the appropriate procedure.[1] What is appropriate will depend on the circumstances. In general terms, the procedure should reflect the remedial nature of the power contained in s 14. It is important to avoid undue expense and formality and to deal with applications promptly and efficiently.[2]
[1] See for example, Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009, MacKenzie J at [4]; Estate of McNeil HC Timaru CIV-2008-476-612, 28 September 2009, MacKenzie J at [7].
[2] Estate of Flowers HC Auckland CIV-2010-404-7145, 3 March 2010, Woodhouse J at [14]–[16]; Estate of Zhu HC New Plymouth CIV-2010-443-21, 17 May 2010, MacKenzie J at [2]–[4].
[13] The rules do not expressly envisage that such applications can be made by way of originating application.[3] However, pursuant to r 19.5, the Court can permit any proceeding not mentioned in rr 19.2 to 19.4 to commence by originating application.
[3] High Court Rules, rr 19.2–19.4.
[14] In the present case, there is no application under r 7.9 seeking the Court’s permission for the use of the part 19 procedure applicable to originating applications. Nevertheless, I am satisfied that the originating application adopted by the applicants, is, in the circumstances of this case, not inappropriate. The applicants are the persons primarily interested in the deceased’s estate if the document dated
10 June 2010 is declared to be the deceased’s valid will. The only other persons potentially affected are a Mr and Mrs Grimsdale. The deceased in the document leaves her three animals to Mr Clark, but then provides that if he does not want
them, then two cats are to go to Mr and Mrs Grimsdale, and a dog is to go to
Ms Thompson. Given the contingent and limited nature of Mr and Mrs Grimsdale’s interest, I cannot see that it is necessary for a notice of proceedings and statement of claim to be issued.
[15] Nor is it necessary to direct that other persons be served. Ms Thompson has deposed that to the best of her knowledge, her mother had no other children. Ms Thompson and Mr Clark have searched through the deceased’s papers, and they have not located a previous will, nor found any sign that there was a previous will. If the document dated 10 June 2010 is not declared the deceased’s valid will, there will be an intestacy. The persons who can be affected by the making of an order declaring the document a valid will are those who would succeed on an intestacy in accordance with the rules set out in s 77 of the Administration Act 1969. All of the deceased’s children, and Mr Clark, have sworn affidavits in this matter. All join in
making this application. All survived the deceased. More remote ”issue”,[4] as that
word is used in s 77, do not need to be considered. Mr and Mrs Grimsdale only have a contingent interest in the two cats if the document is held to be a valid will. I am satisfied that there is no other person to whom notice of the application ought to be given.
[4] Defined in Estate of Berkett HC Christchurch M621/97, 7 May 1998, Young J.
[16] Accordingly, I direct that the proceedings can proceed by way of originating application, and that it is not necessary for the applicants to serve any other persons.
The Application
[17] The application is made under s 14 of the Wills Act 2007. It provides as follows:
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.
[18] As can be seen, the section imposes four requirements for a will to be declared valid.[5] They are as follows:
[5] See N Peart ―Where there is a Will, There is a Way — A New Wills Act for New Zealand‖
(2007) 15 Waikato L Rev 26 at 32–36.
a) there must be a document;
b) the document must appear to be a will;
c) the document must fail to comply with s 11, and
d) the Court must be satisfied that the document expresses the
deceased’s testamentary intentions.
[19] I address each in turn.
[20] First, there is clearly a document as defined in s 6 of the Act. That document was prepared by Nurse Walters at the direction of the deceased.
[21] Secondly, the document appears to be a will. It starts with the words, ―This is the last will and testament of Beverley Ann Marriott Clark‖. It was prepared after Mrs Clark spoke to Nurse Walters and Nurse McCartain, and after she told them that she wished to make a will that night. It takes the form of a will. Mrs Clark appointed executors. She listed the beneficiaries, and she detailed what assets were
to go to each of the beneficiaries. It purports to do the things detailed in s 8(1)(b) of
the Act. Mrs Clark expressly addressed the issue of her testamentary capacity. She read over the document once it had been prepared and she signed it. Both Nurses Walters and McCartain have also signed the document.
[22] Thirdly, execution of the document does not comply with s 11(4) of the Wills Act. Although the document was signed in the presence of Nurses Walters and McCartain, they did not state on the document that they were in Mrs Clark’s presence and that they were present together when she signed. The lack of awareness of the technical requirements concerning the making of a valid will is readily understandable.[6]
[6] Re Rejouis [2010] 3 NZLR 422 (HC) at [23].
[23] Fourthly, I am satisfied that the document expresses the deceased’s testamentary intentions. It disposes of property to which the deceased was prima facie entitled. It sets out clearly her intentions in relation to those assets on her death. The deceased read the document and then signed it. There is cogent evidence
that the document reflects the testamentary intentions of Mrs Clark.[7] There is
nothing to suggest any lack of testamentary capacity. Indeed, Nurse Walters confirms her belief that Mrs Clark was in sound mind when she dictated and signed the document.
[7] Estate of Hickford at [11]; Estate of Brown HC Auckland CIV-2010-404-6328, 13 October 2010, Lang J at [18].
[24] Section 14(1)(c) is not in issue. The document was signed in the
North Haven Hospice in Whangarei.
[25] Accordingly, having considered the affidavits filed in support, and various matters outlined in s 14(3), I am satisfied, on the balance of probabilities, that the document is the deceased’s will. I make an order declaring the document dated 10
June 2010, signed by the deceased and by Nurses Walters and McCartain, to be the valid will of the late Beverley Ann Marriott Clark.
[26] The costs of this application are to be met by the estate.
Wylie J
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