Estate of Arbuckle

[2024] NZHC 2007

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-407

[2024] NZHC 2007

IN THE MATTER

of section 14 of the Wills Act 2007

IN THE MATTER

of the estate of FAY ELAINE ARBUCKLE

LYNDA JANE ARBUCKLE

Applicant

Hearing:	On the papers
Appearances:	C O’Connor for Applicant
Judgment:	22 July 2024

JUDGMENT OF McHERRON J

[1]    This is a without notice originating application by Lynda Arbuckle for an order under s 14 of the Wills Act 2007 (the Act) declaring Fay Arbuckle’s will valid. I allow the application for the following reasons.

Background

[2]    Fay Arbuckle and her husband Raymond Arbuckle completed mirror wills within days of each other in 2014. Mr Arbuckle’s will was correctly witnessed by two witnesses in accordance with s 11 of the Act. However, Fay Arbuckle’s will was only witnessed by one witness.

[3]    Raymond Arbuckle died in 2018. He predeceased Fay Arbuckle, who died on or about 16 March 2022.

ESTATE OF ARBUCKLE [2024] NZHC 2007 [22 July 2024]

[4]    Lynda Arbuckle, Fay’s daughter, is the substitute executor and trustee named in the will.

[5]Lynda Arbuckle seeks:

(a)leave for the application to be made without notice to any other person; and

(b)an order that the document, a copy of which was provided with her application, be declared valid as the last will of Fay Arbuckle.

Legal considerations

[6]    Under s 14 of the Act, the Court may declare a document to be a valid will if it is satisfied the document expresses the deceased’s testamentary intentions.

[7]    The document annexed to Ms Arbuckle’s application appears to be a will, but it does not comply with s 11(2) of the Act because it is not witnessed in accordance with s 11(4). The sole reason for invalidity is that the document has been witnessed by only one person, not two.

[8]In exercising its discretion under s 14, the Court may consider:1

(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.

[9]In Lynda Arbuckle’s informative affidavit, she deposes that:

1      Wills Act 2007, s 14(3).

(a)She made full inquiries and searches for an earlier will made by Fay Arbuckle, but is satisfied there is none. Therefore, if the document that is the subject of her application is not declared to  be a valid  will,  Fay Arbuckle will be wholly intestate.

(b)The persons with a beneficial interest in Fay Arbuckle’s estate on intestacy, apart from Lynda Arbuckle, are two other named children and two named grandchildren, all of whom have provided consents to the application that the document be declared a valid will.

(c)Fay Arbuckle was not survived by a de facto partner entitled to succeed on intestacy.

(d)None of the children are children to whom s 16(2)(d) of the Adoption Act 1955 or s 4 of the Status of Children Act 1969 is relevant or applies.

(e)Fay Arbuckle was not survived by any other child born to her or adopted by her. Lynda Arbuckle has made reasonable inquiries for the purposes of the Status of Children Act 1969 as to the existence of a parent or child deceased in addition to those already known to her who could claim an interest in the estate through that Act and other legislation governing the distribution of intestate estates. The result of Lynda Arbuckle’s inquiries was that she did not discover any such parent or child. She has annexed a certificate from the Office of the Registrar-General of Births, Deaths, Marriages and Citizenship confirming the absence of a record of any such parent or child.

My assessment

[10]   Based on the material supplied by Lynda Arbuckle, I am satisfied that the document, a copy of which was filed by Lynda Arbuckle with her application, headed “Will of Fay Elaine Arbuckle” and dated 22 February 2014, expresses Fay Arbuckle’s testamentary intentions.

Result

[11]The application can proceed without notice.

[12]   The document dated 22 February 2014, a copy of which was filed with Lynda Arbuckle’s without notice originating application headed “Will of Fay Elaine Arbuckle” and dated 22 February 2014, is valid.

McHerron J