Collins

[2020] NZHC 2550

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2020-485-507

[2020] NZHC 2550

IN THE MATTER OF

Section 14 of the Wills Act 2007

and

IN THE MATTER OF

the estate of GORDON ALFRED ILLINGWORTH

and

IN THE MATTER OF

an application by MICHAEL BRIAN COLLINS

Applicant

On the papers
Counsel:	D Miller for Applicant
Judgment:	29 September 2020

JUDGMENT OF MALLON J

The application

[1]                Michael Collins applies for an order that a document dated 18 April 2020 be declared valid as the last will of Gordon Alfred Illingworth. Mr Collins is named as one of the executors in that document. Leave is also sought for the application to be made without notice to any other person.

The evidence

[2]Gordon Alfred Illingworth (the deceased) died on 23 April 2020.

RE COLLINS [2020] NZHC 2550 [29 September 2020]

[3]                Mr Collins had known the deceased for approximately 20 years. The deceased became unwell during the Government’s COVID-19 alert level 4 restrictions. He spent several weeks in Dunedin Hospital.

[4]                On 15 April 2020 the deceased asked Mr Collins to check that his will was in order and said that he wished to make amendments to it. The deceased initially thought his will was at his home. Mr Collins was unable to find it there. The deceased then explained that it was most likely with his lawyers, Gallaway Cook Allan. On 17 April 2020 Mr Collins contacted Devon Miller, a partner with Gallaway Cook Allan, explaining that the deceased was unwell and wished to make changes to his will. The deceased was a client of Ms Miller and known personally by her.

[5]                On that same day, Ms Miller spoke with the deceased via a Facetime call from his bed at Dunedin Hospital. During the call, the deceased explained to Ms Miller the changes he wanted to make to his will. Ms Miller arranged to make those changes. The revised will was emailed to Mr Collins. Mr Collins printed out the revised will so that the deceased had  a  hard  copy at  Dunedin  Hospital.  The  deceased  gave Mr Collins no indication that he was thinking about any further changes to the will.

[6]                On 18 April 2020, at around 4 pm, Ms Miller contacted the deceased via a Facetime call in the presence of Mr Collins.   Mr Collins held the camera so that    Ms Miller could see the deceased and the will. Ms Miller explained the changes to the will and obtained confirmation from the deceased that the revised will contained the changes he had wished to make.

[7]                Due to the alert level 4 restrictions, Ms Miller was not able to be present with the deceased to witness the revised will. Nor did she have another adult witness available at her residence to assist with witnessing the will. Due to the deteriorating physical health of the deceased, Ms Miller considered there was a sense of urgency to get the will signed.

[8]The following procedures for witnessing the will were adopted:

(a)Ms Miller was satisfied that the deceased was the person on the call.

(b)The deceased held up to the camera each page of the will intended to be signed and witnessed. Ms Miller observed that the document was the revised will that had been prepared for the deceased.

(c)Ms Miller then watched the deceased place the document down on a tray in view of the camera and witnessed the deceased initial the first page, sign the second page in full and date the cover page. The deceased then held up to the camera each page of the signed will.

(d)Ms Miller observed the deceased place the document on a tray in view of the camera.

(e)Once the deceased had signed the will, Mr Collins placed the will into an envelope and delivered it to the mailbox at the home address of  Ms Miller at 6.05 pm on 18 April 2020. He also sent a text message to Ms Miller to say that the will was there for collection.

(f)Ms Miller replied to Mr Collins’ text message at 6.22 pm to acknowledge that she had collected the will.

(g)Ms Miller was satisfied that this was the same document that she had seen the deceased sign. She immediately witnessed the will and held it securely in her home office.

[9]The 2020 revised will:

(a)revokes all former wills and other testamentary dispositions made by the deceased;

(b)appoints Michael Collins, Devon Miller and David Smillie as executors and trustees;

(c)after payment of debts, funeral expenses, administration expenses, and any duties, gives the deceased’s residuary estate in two equal parts to:

(i)the children of the late Gaynor Howison; and

(ii)Sinead     Church,     Lorraine     Cooke,     Faye     Bailey     and Gary Temiaroa.

[10]            The deceased had made an earlier will dated 19 April 2016. That also appointed Mr Collins, Ms Miller and Mr Smillie as his executors and trustees. After payment of debts, expenses, estate duties or other taxes, it gifted the residue of the estate equally into five parts:

(a)one part for Sinead Church;

(b)one part for the children of the late Gaynor Howison; and

(c)one part for each of Lorraine Cooke, Faye Bailey and Gary Temiaroa.

[11]            All beneficiaries of the 19 April 2016 will and the proposed 2020 will have been advised of their right to seek independent legal advice and have consented to an order being made declaring the 2020 document to be a valid will. Mr Collins has made reasonable inquiries as to the existence of a parent or child of the deceased in addition to those already known to Mr Collins. The result of his inquiries was that he did not discover any such parent or child.

The order

[12]            The document has not been executed in the manner prescribed in s 11 of the Wills Act 2007 because it was signed via audio-visual link and has not been signed in the presence of two witnesses. The document appears to be a will. It came into existence in New Zealand. I am satisfied the document expresses the deceased’s testamentary intentions, and the consent of all persons who may be potentially affected by the granting of the order has been given. In these circumstance it is appropriate to exercise the jurisdiction under s 14 of the Wills Act.

[13]            Accordingly, I order that the document dated 18 April 2020, a copy of which is marked “A” and attached to the affidavit of the applicant and the affidavit of Devon

Miller filed in support of this application, is declared valid as the last will of the deceased. I also grant leave for the application to be made without notice to any other person.

Mallon J