Cook (Will of Funnell)

[2023] NZHC 820

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-370

[2023] NZHC 820

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER OF	an application by SHERRIDAN SCOTT COOK for an order that a document be declared a valid will of the deceased DAMIAN DURAN FUNNELL

On the papers
Counsel:	K M Paterson and L Elliot for the applicant A Finnie for the minor beneficiaries
Judgment:	18 April 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 18 April 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

COOK (WILL OF FUNNELL) [2023] NZHC 820 [18 April 2023]

[1]        The deceased, Damian Funnell, died unexpectedly in December 2022. Before his death, Mr Funnell had arranged for a draft will to be prepared. He had also sent an email setting out amendments he wished to be made to that draft will. Mr Funnell never finalised or executed that will.

[2]        The applicant, Sherridan Cook, is named in the draft will  as executor of     Mr Funnell’s estate. Mr Cook applies for an order under s 14 of the Wills Act 2007 declaring the draft will and the email as the valid will of Mr Funnell.

Background

[3]        Mr Funnell had made a will dated 18 August 2013. At that time, he was married to Shelley Funnell, with whom he had four children. The children are now from 11 to 16 years of age.

[4]        Mr Funnell and Ms Funnell separated in May 2018. Their marriage was dissolved in December 2021. However, they remained on good terms and maintained a good relationship for the benefit of their children.

[5]        In August 2021, Mr Funnell instructed his lawyers to prepare a will to replace his 2013 will. On 18 August 2021, Mr Funnell’s lawyers emailed him a draft will (August 2021 Draft Will) that had been prepared in accordance with his instructions. In essence, the August 2021 Draft Will provided that Mr Funnell’s residuary estate be shared equally by his four children.

[6]        On 13 December 2021, following communications between Mr Funnell and his lawyers, an updated draft will  (December 2021  Draft Will) was  emailed to  Mr Funnell. This contained only minor and non-substantive edits to the August 2021 Draft Will.

[7]        On 15 September 2022, Mr Funnell sent an email to Ms Funnell attaching the August 2021 Draft Will. In the email, Mr Funnell suggested that the August 2021 Draft Will be amended in two ways (September 2022 Email). These were that:

(a)$250,000 be gifted to Ms Funnell; and

(b)his partner, Aleksandra Davis, be gifted a share of the remainder of the estate, the gift being five per cent of the estate for each year that he and Ms Davis were together, up to a maximum of 25 per cent.

[8]        Mr Funnell said that, after these gifts, the remaining estate would be distributed to his children equally.

[9]        In October 2022, Mr Funnell and Ms Funnell met and discussed Mr Funnell’s suggestions. Mr Funnell confirmed to Ms Funnell that the September 2022 Email reflected his wishes.

[10]      An updated will incorporating the amendments in the September 2022 Email was not drafted or executed before Mr Funnell died in December 2022.

The 2013 Will

[11]      Ms Funnell and Mr Cook were the executors and trustees of Mr Funnell’s 2013 will. The beneficiaries under that will were Ms Funnell and the trustees of the SDJ Family Trust.

[12]      After his divorce from Ms Funnell, Mr Funnell retired as a trustee of the SDJ Family Trust, and the trust was varied removing him as a beneficiary. The remaining beneficiaries of the trust are Ms Funnell, the four children, and Ms Funnell’s parents.

[13]      Under s 19 of the Wills Act, any provisions in the 2013 will  providing  for Ms Funnell or appointing her as executor are void. It is also unlikely that the disposition to the SDJ Family Trust would remain valid.

The application and the position of other interested parties

[14]      Mr Cook applies for an order declaring the August 2021 Draft Will and the September 2022 Email collectively as the valid will of Mr Funnell. The order seeks validation of the August 2021 Draft Will, rather than the December 2021 Draft Will, because it was the former that Mr Funnell attached to his September 2022 Email.

[15]      Ms Paterson, counsel for Mr Cook, filed a detailed and helpful memorandum in support of the application. Also filed were consents from Ms Davis and Ms Funnell to the order being made.

[16]      The four children are minors. Mr Finnie was appointed to represent them. He filed a memorandum. He said he had met with the children and that they appeared happy for the order to be made. He noted there was no evidence to suggest Mr Funnell had changed his mind in any way between the September 2022 Email and his death three months later. He said that in respect of the proposed gift to Ms Funnell, it was important to note that the children reside with their mother who is responsible for their needs. In the circumstances, Mr Finnie did not oppose an order validating the August 2021 Draft Will and the September 2022 Email.

Analysis

[17]      Section 14 of the Wills Act applies to a document that appears to be a will but which does not meet the Act’s formal requirements for validity. If the Court is satisfied that the document “expresses the deceased person’s testamentary intentions”, the Court may declare the document to be a valid will. Section 14(3) provides that 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]      The August 2021 Draft Will plainly appears to be a will. So does the September 2022 Email, given that it proposes to dispose of Mr Funnell’s property on his death.

[19]      I am satisfied that the two documents express Mr Funnell’s testamentary intentions. As to the August 2021 Draft Will, there is no evidence that Mr Funnell had any change of mind (other than the amendments he set out in the September 2022 Email). As to the September 2022 Email, although this is expressed in slightly conditional terms, I accept that Mr Funnell subsequently confirmed that his proposed

amendments were his settled intentions. In respect of both documents, the affidavit evidence persuades me that Mr Funnell had no further change of mind. Rather, circumstances at the time meant that he never got around to finalising a formal will or executing it.

[20]      For these reasons, I am satisfied that I should declare the two documents to be valid.

[21]      Mr Cook also seeks that the costs of this application be paid from Mr Funnell’s estate. That is entirely appropriate.

Result

[22]      I declare the August 2021 Draft Will and the September 2022 Email are collectively the valid will of Mr Funnell.

[23]      I order that the costs of this application (including Mr Finnie’s costs) are to be paid from the estate of Mr Funnell.

Campbell J