Cornelius - [2012] NZHC 563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-341 [2012] NZHC 563

BETWEEN IN THE ESTATE OF GRANT CHARLES CORNELIUS, DECEASED

Hearing: On the papers

Counsel: G B Towers for applicants

Judgment: 28 March 2012

JUDGMENT OF ALLAN J

Solicitors:
Simpson Grierson, Auckland greg.towers@simpsongrierson.com

ESTATE OF CORNELIUS, DECEASED HC AK CIV 2012-404-341 [28 March 2012]

[1] Grant Charles Cornelius died suddenly in Auckland on 5 September 2011. He left no executed will. There is however, an unsigned will, prepared by his solicitors in July 2008.

[2] Initially, Mr Towers applied for an order validating the unsigned document, in reliance on s 14 of the Wills Act 2007 (the Act), and for probate in solemn form of that will if validated.

[3] On 9 February 2012, Potter J issued a minute in which she indicated that further evidence was required to explain why the deceased failed to sign the unexecuted will and pointed out that, if an order was made pursuant to s 14 of the Act, there would be no need for an application for probate in solemn form.

[4] Counsel subsequently filed a without notice application for a declaration of validity under s 14 of the Act, together with a further affidavit as to the deceased’s reasons for neglecting to sign the draft will.

[5] The application is unopposed. All those affected by it have signed and lodged with the Court their consent to the making of an order.

Factual background

[6] Mr Cornelius is survived by his widow, Sarah Jane Cornelius, and three adult children, all of whom are in relationships. One has mental health issues.

[7] On 17 February 2006, Mr and Mrs Cornelius settled the Cornelius Family Trust. The discretionary beneficiaries are the three children, together with grandchildren and great grandchildren. The three children are the final beneficiaries of the trust.

[8] In July 2008, Mr Cornelius consulted his solicitor, Mr R G Willis, a partner in the firm of Simpson Grierson. Mr Willis passed on the instructions to Mr H C Thompson, a solicitor in the firm specialising in wills and estates. Mr Thompson

prepared a will in accordance with those instructions and sent the draft will to Mr Cornelius under cover of a letter dated 10 July 2008. The covering letter explained the effect of the main provisions in the will, and also referred to a memorandum of wishes in respect of the administration of the Cornelius Family Trust. The memorandum was also drafted by Mr Thompson. In the unsigned will the whole estate, save for chattels which are given to Mrs Cornelius, passes to the trustees of the Cornelius Family Trust. The memorandum of wishes was intended to provide some directions to the trustees as to the application of the estate, particularly in respect of the needs of the child who has mental health difficulties. A few weeks later, Simpson Grierson forwarded a bill of costs for their services to date.

[9] Mr Cornelius’s accountant and business adviser was Mr S…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 563
Decision Date: 28 March 2012

CaseChat Overview and Summary

The case involved an application to validate an unsigned will prepared for Grant Charles Cornelius, who died intestate in Auckland. The application was brought by his widow, Sarah Jane Cornelius, and his three adult children. The will, which was prepared by his solicitors in July 2008, was never signed by Mr. Cornelius. The primary legal issue was whether the High Court could declare the unsigned will valid under section 14 of the Wills Act 2007. The court had to consider whether the unsigned document expressed the deceased's testamentary intentions and whether the requirements of section 14 were met.

The court found that the provisions of section 14 applied, as the will was prepared after the Act's effective date and did not comply with the execution requirements. The court was satisfied that the unsigned will expressed the deceased's testamentary intentions, based on the solicitors' statements and the widow's evidence that she and her late husband intended to make identical testamentary dispositions. Additionally, Mr. Cornelius's accountant testified that Mr. Cornelius had agreed to the provisions of the draft will and wished to sign it. The court concluded that Mr. Cornelius simply failed to execute the will despite being satisfied with its contents.

The court granted the application and declared the unsigned will valid under section 14 of the Wills Act 2007. The decision was supported by the consent of all parties affected by the will, who had been informed of their rights under the Administration Act 1969.

Orders