Estate of Anderson

[2024] NZHC 1962

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-203

[2024] NZHC 1962

IN THE MATTER

of the Estate of Carla Nancy Anderson

ROSS JOHN ANDERSON AND MARIA ELIZABETH ANDERSON

Applicants

Hearing:	On the papers
Counsel:	S J Bee for Applicants
Judgment:	16 July 2024

JUDGMENT OF McHERRON J

[1]                 This is a without notice application by Ross Anderson and Maria Anderson for an order under s 14 of the Wills Act 2007 (the Act) that documents executed by the late Carla Nancy Anderson, who died on 4 November 2023, be declared a valid will. I allow the application for the following reasons.

Background

[2]                 Shortly before her death, Carla Anderson instructed her solicitor Sarah Bee to draft her a will. Ms Bee drafted a will and memorandum of wishes and forwarded it to Carla Anderson via her sister-in-law Maria Anderson on 3 November 2023.

[3]                 Ms Bee produced a letter dated 3 November 2023 from a doctor at Wellington Hospital, confirming Carla Anderson had capacity to make decisions about her finances.

ESTATE OF ANDERSON [2024] NZHC 1962 [16 JULY 2024]

[4]                 The will appears to have been signed by Carla Anderson and witnessed by two witnesses in accordance with s 11 of the Act. A single handwritten amendment has been made to the will document, to select cremation.

[5]                 Affidavits were supplied by Alison McLearie and Stephen Raytcheff confirming that they each witnessed Carla Anderson signing the will in the presence of Ms McLearie and Mr Raytcheff and that each of them signed the will as witnesses in the presence of Carla Anderson.

[6]                 The document headed “memorandum of wishes Carla Anderson Family Trust” also appears to have been signed, dated 3/11/23 and initialled by Carla Anderson, but was not witnessed. Several handwritten changes were made to this document, some of which were initialled and some were not.

[7]                 Broadly, the documents appear to indicate that Carla Anderson wanted her brother and sister-in-law to be the executors and for the residue of her estate to be transferred to the trustees of the Carla Anderson Family Trust, for distribution guided by the memorandum of wishes.

[8]                 These documents were returned to Ms Bee by Ross Anderson on 3 November 2023. Ms Bee deposes that she was concerned when she received the documents, as the will had deletions that were not initialled, the will did not have the witnesses’ initials in addition to their signatures and the will had been printed on double-sided paper. Ms Bee spoke with Carla Anderson after receiving the signed and amended documents on 3 November 2023. Ms Bee deposes that Carla Anderson assured her that the documents she signed reflected her wishes.

[9]                 When the will validation application was originally filed in this Court in April 2024, Ms Bee indicated her instructions were that the applicants had conveyed the contents of the documents sought to be validated to all persons who may potentially be affected by them, namely Carla Anderson’s children and her partner David Webster- Styles.

[10]             However no written consents were initially provided by these affected persons. Consistent with usual practice I asked the applicants to supply the Court with signed and witnessed consents. These have now been supplied. I have seen consents from each of Carla Anderson’s children, Liam Smith, Georgia Smith and Keegan Smith as well as from her partner David Webster-Styles. Annexed to each consent are the memorandum of wishes and will of Carla Anderson. Each of them confirms that they have been given the opportunity to obtain independent legal advice, and consents to the High Court validating the documents as the last will of Carla Anderson.

My assessment

[11]             Section 14 of the Act provides that the High Court may make an order declaring a document that appears to be a will valid if it is satisfied that the document expresses the deceased person’s testamentary intentions.1 The Court may consider:2

(a)the document;

(b)evidence on the signing and witnessing of the document;

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

[12]             The minor deletion at cl 3.1 is unlikely to impact upon the will’s interpretation. The unresolved question at cl 4.1 about provision for Mr Webster-Styles is arguably resolved by further indication of Ms Anderson’s wishes in the form of a crossing out of paragraph 3 in the memorandum of wishes, and the handwritten addition “mini to go to Lance” on the second page.

[13]             However, it is important to note the acknowledgement in the memorandum of wishes that it is only to be treated as an indication of Carla Anderson’s wishes and is not intended to fetter the obligations and discretions of the trustees of the Carla Anderson Trust.

1      Wills Act 2007, s 14(2).

2      Section 14(3).

[14]             With these qualifications, and having considered the documents, the evidence on the signing and witnessing of the documents, evidence of Carla Anderson’s testamentary intentions and statements made by her, I am satisfied that the documents express Carla Anderson’s testamentary intentions.

[15]Accordingly, based on the material submitted by the applicant, I am satisfied:

(a)the present application can proceed without notice; and

(b)that the will and memorandum of wishes with handwritten changes express Carla Anderson’s testamentary intentions.

Result

[16]             I declare that the documents, copies of which are marked “A” and annexed to the affidavit of Sarah Bee, sworn on 14 February 2024, are valid.

McHerron J

Solicitors:
Lincoln Law, Lincoln for applicants