Dunne

[2021] NZHC 2682

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000283

[2021] NZHC 2682

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of the Will of Barrie Dunne

BETWEEN

OWEN DEXTER AND PHILIP JOHN SIMMS

Applicants

Hearing:	On the papers
Appearances:	R B C Aitken for Applicants
Judgment:	7 October 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 7 October 2021 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE DUNNE [2021] NZHC 2682 [7 October 2021]

Introduction

[1]                 The deceased,  Barrie  Dunne,  died  on  6  May  2021.  The  applicants, Owen Dexter and Philip John Simms, who are named as executors in an unsigned will of Mr Dunne, seek an order pursuant to s 14 of the Wills Act 2007 that the document be declared a valid will.

Background

[2]                 On 1 August 2017, Mr Dunne executed a will in Australia (the Australian will) appointing Mr Hapuku and Mr Keown as executors. The Australian will included various beneficiaries.

[3]                 Counsel for the applicants, Ms Aitken, has filed an affidavit in support of the application. She deposes that on 29 April 2021, Mr Dunne went to Lane Neave’s offices and instructed her to draft a new will. She says in early 2021 Mr Dunne relocated to Christchurch and transferred his assets (bank account balances, superannuation and personal effects) to New Zealand. He advised Ms Aitken that he intended to reside permanently in New Zealand, all his assets had been transferred to New Zealand and he did not own real estate in either country.

[4]                 The document was prepared on 6  May  2021  (the  draft  will)  but  before Mr Dunne was sent the document to approve, he died unexpectedly on 9 May 2021.

[5]                 The draft will appoints Mr Dexter and Mr Simms as executors and none of the persons (executors or beneficiaries) mentioned in the Australian will are included in the draft will. Ms Aitken explains she believes the draft will represents Mr Dunne’s testamentary intentions regarding the appointment of trustees, executors and beneficiaries as he:

(a)sought out a solicitor to draft this will; and

(b)his Australian will contains a number of handwritten deletions indicating it no longer represented his testamentary intentions.

[6]                 Mr Owen and Mr Simms depose they assisted Mr Dunne in his  move to  New Zealand and suggested he speak to a lawyer when he expressed his intention to prepare a new will. They depose that neither of them has sighted a copy of the draft will.

[7]                 The application was made by way of an originating application without notice. In a minute of 3 August 2021, I made directions requiring the beneficiaries of the Australian will to be served with notice of the application. Service has now been executed and all four beneficiaries of the Australian will have provided their consent for the unsigned will to be validated and probate sought in respect of it.

Law

[8]                 This Court has power to declare a document a valid will, pursuant to s 14 of the Wills Act. That section states:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3)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.

Discussion

[9]                 The draft will meets all the requirements of s 14(1)(a). It does not comply with s 11 of the Act because it was not signed by the will-maker or witnessed as prescribed by s 11(3) and (4).

[10]             I am satisfied the draft will expressed Mr Dunne’s testamentary intentions. Mr Dunne went to a solicitor to draft his  will.   Further, as noted by Ms Aitken,     Mr Dunne appears to have made a number of hand-written deletions on his Australian will which are dated 29 August 2020, and which are consistent with the intention to remove the Australian beneficiaries from his will as the draft will has done.

[11]             Mr Dexter and Mr Simms depose that Mr Dunne is not survived by a partner, nor does he have any children. I am satisfied that consent has been obtained from all those potentially affected by the granting of the order sought.

Order

[12]Accordingly, I make the following order:

(a)Pursuant to s 14(2) of the Wills Act 2007, I make an order declaring the document, a copy of which is attached to the affidavit of Owen Dexter and Philip John Simms, to be the valid will of Barrie Dunne.

Solicitors:
Lane Neave, Christchurch