Cox v Dobson - [2020] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000138

[2020] NZHC 2644

UNDER section 14 of the Wills Act 2007

IN THE MATTER OF

an application for an order that a document be declared a valid will of the deceased DAYAL PATRICK PHILLIPS

BETWEEN

PHILLIP DOUGLAS COX and DAVID SIME COGGER

Applicants

AND

ROHAN DOBSON

First Interested Party

DANIEL JAMES PHILLIPS
Second Interested Party

REBECCA MARIE MARTINEZ

Third Interested Party

Hearing: 14 September 2020

Appearances:

C Simes for the Applicants

J Stanton for the First Interested Party Mr Phillips in person

Ms Martinez in person

Judgment:

8 October 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 8 October 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:
Kiwilaw Mediation and Advocacy Ltd, Oxford Mortlock McCormack Law, Christchurch

ESTATE OF PHILLIP [2020] NZHC 2644 [8 October 2020]

Introduction

[1] This is an application under section 14 of the Wills Act 2007 (the Act) for an order declaring an unsigned electronic document as the valid will of Dayal Patrick Phillips (Dayal), who died in a motorcycle accident at Ruapuna Raceway, Christchurch on 23 October 2019.

[2] Dayal validly executed a will on 21 September 2010 (the prior will). At that time, he was married to Suzan Lisa McCall (Suzan). Dayal and Suzan’s marriage was dissolved in 2014.

[3] An unsigned electronic document (the purported will) was created and saved by Dayal on his computer on or about 31 August 2018. The purported will was not validly executed. At that time, he had been in a de facto relationship with Rohan Dobson (Rohan) for approximately three years. The couple had been engaged to be married for two years at the time of Dayal’s death.

[4] Dayal has two adult children from an earlier relationship, Rebecca Marie Martinez (Rebecca) and Daniel James Phillips (Daniel).

[5] The application to validate the purported will is made by Phillip Douglas Cox (Phillip) and David Sime Cogger (David). Phillip and David are the executors of the prior will and are also named as executors in the purported will.

[6] Rohan supports the validation of the purported will. At the hearing before me, Rebecca also supported validation of the purported will. Since the hearing, Rebecca attempted to file a further affidavit updating the Court on her position; I directed that affidavit should be rejected for filing, as it was not accompanied by any relevant application, and it was out of time. Daniel neither supported nor objected to the validation of the purported will, but wanted to provide the court with additional information for the purposes of its deliberations. He was particularly concerned that the executors had rushed in identifying the purported will as Dayal’s last will, and had not undertaken a thorough enough search of Dayal’s computer to identify the correct document for testamentary purposes.

[7] There is no issue in this case as to whether…

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.

Continue reading Cox v Dobson

Details

AGLC: Cox v Dobson [2020] NZHC 2644
Case: [2020] NZHC 2644
Decision Date: 8 October 2020

CaseChat Overview and Summary

Phillip Douglas Cox and David Sime Cogger sought a declaration that an unsigned document was the valid will of Dayal Patrick Phillips. The applicants argued the document, which was saved on Dayal’s computer, expressed his testamentary intentions. The first interested party, Rohan Dobson, supported the application. The second interested party, Daniel James Phillips, neither supported nor opposed the application, but raised concerns about the validity of the purported will. The third interested party, Rebecca Marie Martinez, supported the application. The Court considered whether the purported will expressed Dayal’s testamentary intentions. The Court found that the document did not comply with the requirements of execution and attestation. The Court found that there were a number of issues with the purported will which led the Court to conclude that it did not express Dayal’s testamentary intentions. The Court declined to declare the document a valid will.

Orders