Dempster, re HC Auckland CIV 2010-404-3248

[2010] NZHC 1066

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-003248

IN THE MATTER OF     the Estate of MARK CHARLES DEMPSTER

Hearing:         18 June 2010

Appearances: (On the Papers) Judgment:       18 June 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 18 June 2010 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

To:           Dr H L Dempster (Applicant) 35 Collingwood Street Wellington 6140

ESTATE OF M C DEMPSTER HC AK CIV-2010-404-003248  18 June 2010

[1]      This is another of those cases where a will that was validly made under the law then applying is now at risk of being held to be invalid because of the Wills Act

2007 (the 2007 Act).   This Act has introduced an additional requirement for the execution of wills.  Formerly, the law required a will to be executed by its maker signing the will in the presence of two witnesses who in turn signed the will as witnesses to its execution.  The 2007 Act has retained those requirements and added a further one under s 11(4)(b).  There now has to be a statement on the will recording that the two witnesses were both present at the time the maker of the will signed it. Another provision in the 2007 Act makes the new requirements applicable to the wills of all living persons at or after the date the 2007 Act came into force.  Hence, the additonal requirement the Act imposes can apply to wills that were made at a time when this requirement was not in existence and, therefore, could not have been known.  Non-compliance with the requirement places a will at risk of being found to be invalid.

[2]      The 2007 Act contains provision for a court to validate a will which does not conform to the legal requirements for a valid will.  But this provision only applies to wills made after the 2007 Act came into force.

[3]      Therefore, one of the consequences of the 2007 Act is that wills that have been invalidly made after the Act came into force can be validated by the court.  But wills that were validly made under the previous law, and which do not conform to all the requirements of the new law will now be invalid.  Moreover, there is nothing the court can do to rectify that outcome.

[4]      This  circumstance  has  caused  courts  to  adopt  a  liberal  interpretation  of s 11(4)(b).   At the same time the courts have expressed their concern about the present situation, and the need for the legislature to remedy what appears to be an unintended  gap  in  the  2007  Act.    In  In  the  Estate  of  Kenneth  Stevenson  HC New Plymouth CIV-2009-443-432, 22 October 2009, MacKenzie J at [16] referred to the views expressed in the case law that there was “an apparently unintended gap (in the legislation) which requires legislative attention”.  He went on to say:

As matters now stand, it is possible that a will which was validly made under the  law then  applying  may  have  to  be  held  invalid.    In  my  view,  that possibility requires urgent legislative attention.

This judgment echoes MacKenzie J’s request.

[5]      The  question  for  determination  in  this  case  is  whether  a  will  made  by Mark Charles Dempster (the deceased) on 8 November 2005 meets the requirements of s 11(4).  The provision reads:

11       Requirements for validity of wills

…

(4)       At least 2 witnesses must—

(a)be together in the will-maker's presence when the will-maker complies with subsection (3); and

(b)each state on the document, in the will-maker's presence, that the witness was present when the will-maker complied with subsection (3); and

(c)      each sign the document in the will-maker's presence.

[6]      The relevant part of the subject will reads:

Signed this 8 th day of November, 2005

Mark Charles Dempster – And witnessed by

Geoffrey West 72 Beach Road Howick, Auckland Retired –

And by Margaret West 72 Beach Road Howick, Auckland Retired –.

[7]      There is no doubt that the will shows the signature of the deceased, and the signatures of two witnesses, Geoffrey West and Margaret West.   The will records that  the  deceased’s  signing  of  the  will  was  witnessed  by  Geoffrey  West  and Margaret West.   Since the deceased’s signature only appears once on the will, the logical inference is that both Geoffrey West and Margaret West must have been present when the signing occurred.  Thus s 11(4)(a) is satisfied.  The affidavit of due execution provided by Geoffrey West confirms that he and Margaret West signed the

will as witnesses in the deceased’s presence.  Thus the requirements of s 11(4)(c) are satisfied.  The only remaining question is whether the will conforms with s 11(4)(b)?

[8]      One of the executors, Hamish Dempster, who is the son of the deceased, has filed a memorandum in which he submits that if a liberal interpretation is given to s 11(4)(b),  consistent  with  the  decision  of  MacKenzie  J  in  In  the  Estate  of Kenneth Stevenson, I can be satisfied that the requirements imposed by s 11(4)(b) have been met.   Relying on the decision in In the Estate of Kenneth Stevenson at [12], Dr Dempster submits that the statement required by s 11(4)(b) does not have to be written by the witness.  It is argued that this requirement is met if the statement is attested to by the witness, so that the witness adopts the statement as his or her own. Dr Dempster further submits that no particular form of words is required, and again he relies on a passage in In the Estate of Kenneth Stevenson at [11]. Dr Dempster submits that this Court should adopt a liberal approach, because if s 11(4)(b) is applied “pedantically”, it will retrospectively invalidate wills which were valid at the time they were made: see In the Estate of Kenneth Stevenson at [10] and [11] where MacKenzie J opined that Parliament has shown an intention that the wishes of a testator should not be defeated by technical non-conformity where those wishes are clear.

[9]      Dr Dempster contends that the meaning of the word “witnessed” includes “person present at event”: see Shorter Oxford English Dictionary (5th  ed, vol 2, Oxford  University  Press,  Oxford,  2002)  at  3659.    He  submits  that  the  natural meaning  of  the  phrase  “witnessed”  in  this  context  is  that  Geoffrey  West  and Margaret West witnessed the deceased make the will by signing it, and this is what they  stated  by  attesting  to  the  phrase  “and  witnessed  by”.    For  this  reason,

Dr Dempster says the witnesses have stated on the will that they were present when the deceased signed the will.  Hence, the will conforms with s 11(4)(b).

[10]     I accept the submissions of Dr Dempster on how the will in this case should be interpreted.  I accept that by taking a liberal interpretation of s 11(4)(b), coupled with taking into account the dictionary definition of the word “witnessed”, it is open to me to read the will as containing the required statement in s 11(4)(b).  It follows that I find the deceased’s will is valid under the 2007 Act.

[11]     It is regrettable, however, that the executor of the will, who is a legally qualified person, has had to go to the trouble of preparing a comprehensive memorandum setting out legal argument in order to satisfy the Court that the requirement of s 11(4)(b) has been met.   If I had considered that the subsection should be read less liberally than the interpretation I have adopted, the result may well have been different, and the will may have been found to be invalid.   This would have jeopardised the careful plans the deceased made for one of his children, who is disabled.

[12]     The difficulty s 11(4)(b) creates for wills made before the 2007 Act came into force has been recognised now in a number of judgments.   I can only add to the judicial statements that have already been made emphasising the need for urgent legislative attention to cure what is a clear omission in the Act.

Result

[13]     I find the deceased’s will to have been validly made.

Duffy J