Estate of Ashby

[2017] NZHC 885

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000170 [2017] NZHC 885

UNDER THE	WILLS ACT 2007
IN THE MATTER OF	THE ESTATE OF LESLIE ERNEST ASHBY
AND
IN THE MATTER OF	AN APPLICATION BY ANDREW ERNEST ASHBY AND GORDON LESLIE ASHBY

Hearing:	Dealt with on the papers
Counsel:	BRD Burke for Applicants
Judgment:	4 May 2017

JUDGMENT OF GENDALL J

Introduction

[1]      This proceeding is an originating application without notice for an order declaring that an unwitnessed will dated 26 August 2015 (the will) of the deceased Leslie Ernest Ashby (the deceased) is valid under s 14(2) of the Wills Act 2007 (the Act).  The applicants, Andrew Ernest Ashby and Gordon Leslie Ashby, are children of the deceased.  They are also appointed as executors and trustees in the deceased’s will.

Background

[2]      The deceased died at Christchurch on 25 October 2015, at the age of 86 years old.  He was survived by his wife, Lorna Joan Ashby; two children, the applicants

RE ESTATE ASHBY [2017] NZHC 885 [4 May 2017]

Andrew and Gordon Ashby; and four grandchildren, Hannah, Olivia, Abigail and Nicolas Ashby who are the children of Gordon Ashby.  The deceased had no other descendants.  Before the deceased passed away, he told his wife and at least one of his sons that he had made a will.

[3]      The deceased had used a will kit to make his will which was annexed to the affidavit of Gordon Ashby.  Under the deceased’s will, he disposes of his estate as follows:

(a)       A half share of his share in 76 Bryndwr Road, Christchurch to his son

Andrew Ashby;

(b)      A half share of his share in 76 Bryndwr Road, Christchurch to his son

Gordon Ashby;

(c)       His Holden Astra motor vehicle to his son Andrew Ashby; (d)           His share portfolio to his son Gordon Ashby; and

(e)       The residue of his estate to his wife, Lorna Ashby. [4] The assets of the deceased’s estate compromise:

(a)       A  half  share  of  the  former  family  home  at  76  Bryndwr  Road, Christchurch;

(b)      Shares valued at approximately $50,000;

(c)       The  proceeds  of  an AMP  Life  Insurance  policy  with  a  value  of approximately $36,000; and

(d)      A Holden Astra motor vehicle with a value of between $5,000 to

$10,000.

[5]      All of the above items are disposed of in the deceased’s unwitnessed will by specific gifts except the proceeds of the AMP policy which falls into the residue given to the deceased’s wife Lorna Ashby.  Before his death, it seems the deceased also discussed his share portfolio with Gordon Ashby and said that Gordon, who had an interest in shares, “could look after these when he was gone”.  This is consistent with his will.

Dispensing with service

[6] I turn to deal first with the application to proceed without notice. The application is brought by the deceased’s only children, Andrew and Gordon. The deceased’s wife Lorna consents to the application. The deceased’s only grandchildren are noted at [2] above. They are the children of Gordon and, as I understand it, he and they consent to this application. In any event, I am satisfied here that their interests in this case are properly represented by their father Gordon. There are no other persons affected by this application.

[7]      On that basis, I am satisfied that it is appropriate for this application to proceed without notice and so rule.

Substantive Application

[8]      I turn now to the substance of the application.

[9]      Section 11 of the Act provides that a will must be in writing, signed by a will maker, and witnessed by two persons in the will maker’s presence.  However, s 14 of the Act which is at play here provides:

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.

[10]     I am satisfied from all the material before the Court that the deceased’s will here constitutes a document which expresses the deceased’s testamentary intentions. However, the will which was prepared by the deceased in New Zealand is unwitnessed. As a result it does not comply with s 11 of the Act.

[11]     All parties to this present application and those affected have consented to the application and the validation of the will.

[12]     The affidavit evidence before the Court from the deceased’s wife Lorna, and his children Andrew and Gordon, is clear and unequivocal.  They all depose to the view that the will is the deceased’s last will and that it represents his true wishes and testamentary intentions.

[13]     As a result, and taking into account all the material which is before the Court, I am satisfied, in terms of s 14 of the Wills Act 2007, that it is appropriate here that the present application succeeds and an order is made declaring the will to be the valid will of the deceased. There is an order accordingly.

...................................................

Gendall J

Solicitors:

Harmans Lawyers, Christchurch