Estate of Anthony

[2017] NZHC 1536

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-485-471 [2017] NZHC 1536

IN THE ESTATE OF         BRIAN ANTHONY late of Auckland deceased

Hearing:	On Papers
Counsel:	M N Tolich for Applicant
Judgment:	5 July 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Darryl Anthony is named in an unsigned will document as the executor of the estate of his late father Mr Brian Anthony of Auckland.  He applies for an order under s 14 of the Wills Act 2007 recognising the document as the last will of his father.

[2]      Mr Anthony Snr was married three times.   He had one son, the applicant Darryl.  His third wife, Mrs Valerie Anthony had two children, Vanya and Stephen (since deceased).   In 2011, Mr Anthony Snr was residing in a rest home while Mrs Anthony continued to live in their home.  Instructions were given to a local law firm to draft new wills for each of them.  Mrs Anthony signed her will.  Her daughter took Mr Anthony’s will to the rest home for him to sign.  She expected the rest home would arrange for two independent witnesses to witness execution of the will.

[3]      A  couple  of  months  after  this  event  Mrs Anthony  unexpectedly  died. Mr Anthony survived her by two years.   On his death a signed copy of the will prepared in 2011 has not been able to be located.  Searches have been made both of

the rest home and of his wife’s papers.  Mr Darryl Anthony advises that sometime

IN THE ESTATE OF BRIAN ANTHONY [2017] NZHC 1536 [5 July 2017]

with his lawyers. That has not proved to be so.

[4]      The evidence establishes that the unsigned document was prepared according to instructions given to effect mutual wills.  The instructing solicitor, Mr Anthony’s son and his step-daughter have all deposed that the draft will represented his then instructions.   There is no basis to consider his intentions changed.   Those with a possible interest in this very small estate all consent to the application.

[5]      It cannot be known if the draft will was signed and lost or never signed.

However, the deceased’s comment to his son indicates he believed he had signed it.

[6]      In terms of s 14 of the Wills Act 2007 I am satisfied the document appended to the application:

(a)       appears to be a will;

(b)      does not comply with s 11 of the Act;

(c)       came into existence in New Zealand; and

(d)expresses the testamentary intentions of Mr Brian Anthony as at the time of his death.

Orders

[7]      The application may be commenced by way of originating application.  No further service is required.

[8]      The  document  prepared  by  Corban  Revell  Lawyers  in  March 2011  and headed:

This  WILL  dated  the         day  of                   2011  is  made  by  me

BRIAN ANTHONY of Auckland in New Zealand, retired

Simon France J