Estate of Ashworth
[2021] NZHC 3210
•29 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000836
[2021] NZHC 3210
UNDER the Wills Act 2007 IN THE MATTER OF
AND
the Estate of MAURICE HAYWARD ASHWORTH
IN THE MATTER OF
an application by ROBYN MAY BUCHANAN for an order that an invalid will be validated under the Wills Act 2007
Hearing: On the papers (with telephone conference on 25 November 2021) Appearances:
A Gilchrist for the Applicant
A Finnie as Court appointed counsel for potential minor beneficiaries
Judgment:
29 November 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 29 November 2021 at 11 am Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
ESTATE OF M H ASHWORTH [2021] NZHC 3210 [29 November 2021]
Introduction
[1] This is an originating application under s 14 of the Wills Act 2007 (the Act) seeking an order declaring an unsigned and undated “will” as the last will and testament of the deceased, Maurice Hayward Ashworth. The unsigned will is annexed to an affidavit of Francis Hugh Stott, solicitor, sworn on 12 April 2021.
[2] The last executed Will of Mr Ashworth is dated 6 October 2008 (2008 Will). In the event the unsigned and undated “Will” is not validated, the 2008 Will prevails.
[3]For convenience I refer to the unsigned and undated will as the “2020 Will”.
[4] Section 14 of the Act applies to a document that appears to be a will but does not comply with s 11 of the Act. This Court can make an order declaring the document a valid will if it is satisfied that the document expresses the deceased’s testamentary intentions. The Court can consider the document, evidence in relation to its signing and attestation, evidence in relation to the deceased’s testamentary intentions and evidence of statements made by the deceased.
[5] The applicant, Robyn Buchanan, was Mr Ashworth’s de facto partner for about 39 years. They together owned a property at Clarks Beach as tenants in common in equal shares.
Applications and service
[6]Ms Buchanan brought two applications before the Court:
(a)For an order that she and Natasha Leanne Mills (her daughter) be appointed temporary administrators of Mr Ashworth’s Estate pending the second order below;
(b)For an order validating the 2020 Will.
[7] Those applications were accompanied by an application for directions as to service. The Court ordered service on all beneficiaries named in either the 2008 Will
or the 2020 Will as well as on court-appointed counsel for various minor grandchildren and a minor living in Papua New Guinea. It also directed that court-appointed counsel’s costs were to be paid from the Mr Ashworth’s Estate (the Estate).
[8]Proof of service has been provided to the Court.
[9] Initially, there was opposition to this application by Kirsten Boggi, one of Mr Ashworth’s two daughters. Prior to the scheduled hearing, Ms Boggi withdrew her opposition. I understand there has now been a resolution of the issues between family members. There is no opposition from any other party to the application.
[10] Consequently, this application is determined on the papers. Despite the lack of opposition, it remains for the applicant to satisfy the Court on the balance of probabilities that this is an appropriate and proper application and that the orders sought ought to be made.
Background
[11] The 2008 Will was prepared by Mr Ashworth’s long term solicitor, David Rice of David Rice & Associates. Mr Rice is an experienced lawyer, having been in practice for some 50 years. Mr Ashworth had been a client of the firm for over 30 years.
[12]Mr Rice had also prepared earlier wills dated September 2001 and April 2002.
[13] Under the 2008 Will, Ms Buchanan and Mr Ashworth’s sister, Terryl Evangeline Pope, are appointed executors. Ms Buchanan was to receive a life interest in Mr Ashworth’s share of the property at Clarks Beach. After her interest came to an end (on death or remarriage or entering into a stable de facto relationship with someone else), the deceased’s share of the property was to be divided into four shares between Ms Buchanan’s three children and one of Mr Ashworth’s children. The 2008 Will also gave $20,000 to another daughter of Mr Ashworth, Andrea Pam Ashworth. The residue of the estate was left to Ms Buchanan.
[14] On 14 September 2020, Mr Ashworth contacted Mr Rice to tell him he was in Auckland Hospital, was unwell and wished to make a new will. Mr Rice visited Mr Ashworth at his home, by arrangement, on 22 September 2020.
[15]Mr Rice has filed an affidavit in which he deposes:
At that time [Mr Ashworth] was lucid, aware of the terms of his previous Will, and clear in the changes that he wished to make;
…
Robyn Buchanan was not present at the time that I discussed Mr Ashworth’s Will with him;
A draft of Mr Ashworth’s Will was sent to him at Robyn Buchanan’s email address on Friday 25 September 2020 at 12.08 pm with Natasha Mills (Ms Buchanan’s daughter) receiving a copy. A copy of the email is annexed hereto and marked with the letter “D”. Mr Ashworth did not have an email address of his own. He was asked, in that email, to confirm the details of the Will and to confirm whether any changes were required. He was also asked to confirm whether he was at home or at hospital. He was also advised that arrangements would be made for a lawyer to go out to the property on the afternoon of 25 September 2020;
At 12.28 pm, we received an email from Natasha Mills, the daughter of Robyn Buchanan. The email received from Natasha Mills (annexed hereto and marked as part of exhibit D) relates to both of the Wills of Maurice Ashworth and of Robyn Buchanan;
The various changes to the Wills were made. On the afternoon of 25 September 2020, Francis Stott and Georgia Hobson (solicitors from my offices), at my request, went to Clarks Beach;
[16] Mr Rice also deposes that he considered Mr Ashworth’s testamentary capacity at the time that he gave instructions. He confirms that he believed Mr Ashworth understood:
(a)what a will was, and its consequences;
(b)that he knew the nature and extent of his assets and liabilities;
(c)he knew the names and relationships of his close relatives and could assess their claims to his estate; and
(d)appeared free of any abnormal state of mind that might distort feelings or judgments relating to the making of the Will.
[17] Mr Stott, a senior solicitor at David Rice & Associates, also gave evidence. He deposes he was asked to attend on Mr Ashworth, accompanied by a colleague, on 25 September 2020. The purpose was so that Mr Ashworth could execute the will. He went to Mr Ashworth’s home but Mr Ashworth was unwell and in bed and unable to sign the Will. In his evidence, he described Mr Ashworth as “unconscious”. Mr Ashworth died that evening.
[18] The 2020 Will made a number of changes to the 2008 Will. The unexecuted Will appoints Ms Buchanan’s daughter, Natasha, and Mr Ashworth’s daughter, Kirsten, as joint executors.
[19] The executors are charged with making specific bequests totalling $35,000 to Mr Ashworth’s grandchildren and step-grandchildren. There is also a bequest to a Morrie Anariki in the sum of $10,000 to be paid to him at the rate of $110 a month. I understand that Morrie Anariki is a young man living in Papua New Guinea where Mr Ashworth regularly worked. Mr Ashworth developed a fatherly relationship with the boy during his time working there. Ms Buchanan is then to receive the residue of the estate.
[20]If the 2020 Will is validated, it means that:
(a)Ms Buchanan will change from having a life interest in Mr Ashworth’s half-share of the property to receiving all of the residue;
(b)Ms Buchanan’s children and Ms Boggi (Mr Ashworth’s daughter) will no longer receive a quarter share in Mr Ashworth’s share of the property and will receive nothing;
(c)Andrea Ashworth, another daughter of Mr Ashworth, will no longer receive a legacy of $20,000 but will receive nothing;
(d)The grandchildren/step-grandchildren (and Morrie Anariki) will receive bequests of between $2,500 and $10,000 each but were not mentioned in the 2008 Will.1
[21] Mr Gilchrist advises the Court that the Clarks Beach property has now been sold and a number of estate debts settled. After settlement of that property and some Estate debts, the half interest that belongs to the Estate is represented by cash held in David Rice & Associates’ trust account of $385,925.16. Further debts are to be paid from this sum, including the costs of these proceedings and costs of court-appointed counsel. Before costs are settled, it is anticipated that the half interest that belongs to the Estate is somewhere in the vicinity of $296,000.
The law
[22]Section 14 of the Act 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.
[23]Thus there are four requirements to be met:
1 The grandchildren and step-grandchildren are all minors and most were not born in 2008 when the prior will was executed.
(a)The document must appear to be a will;
(b)The document must not comply with s 11;
(c)The document must have come into existence in or out of New Zealand; and
(d)The Court must be satisfied that the document expresses the deceased’s testamentary intentions.
[24] The crux of the application and the Court’s attention is focussed on the fourth requirement, since the threshold requirements are clearly met. I need to be satisfied that the document claimed to be an expression of Mr Ashworth’s wishes is in fact a genuine expression of those wishes.2
[25] Having reviewed the evidence, including the exhibits and having the benefit of testing certain matters with counsel in a telephone conference, I am satisfied that the 2020 Will is a genuine expression of Mr Ashworth’s wishes and should be validated. I am also satisfied on the balance of probabilities that Mr Ashworth had testamentary capacity and testamentary intention at the relevant time. My reasons follow.
[26] Mr Rice, a very experienced senior practitioner in this field gives evidence that the 2020 Will was drafted in accordance with Mr Ashworth’s express instructions. Mr Rice took those instructions in person. His evidence is that he considered testamentary capacity and that Mr Ashworth was lucid, aware of the terms of his previous will and clear in the changes he wished to make. He gave an explanation for the changes. Mr Rice explained the 2020 Will after Mr Ashworth had advised his wishes to him.
[27] The only reason the document was not executed was that Mr Ashworth died before it could be executed. There was a relatively short period between the instructions, preparation of the document and the attendance for execution.3 There
2 Re Estate of Beaumont [2013] NZHC 2719 at [11].
3 The situation is not like that in Re Estate of Piper [2021] NZHC 534 where the significant lapse in time between the giving of instructions, the forwarding of the draft to the deceased and the
was an email from a family member back to Mr Rice relaying minor corrections as to the names of intended beneficiaries. These were alterations reflecting marriages and consequent changes in surname. In short, matters of immaterial detail rather than substance. In my assessment, this means that the critical time was when Mr Ashworth gave his instructions to Mr Rice.
[28] Mr Rice gives evidence that Mr Ashworth identified to him the primary concern being to make provision for his long term de facto partner. Further, that he gave advice to Mr Ashworth about the potential for claims under the Family Protection Act 1955 against the Estate in the event that he did not provide for his daughters.4
[29] The fact that a testator might wish to update his testamentary wishes after the effluxion of some 12 years is perfectly normal and one would expect changes reflecting new circumstances, such as the arrival of grandchildren.
Result
[30] The affidavits of Mr Stott, Mr Rice and Ms Buchanan satisfy me that the following orders should be made:
(a)The unexecuted and undated will of the late Maurice Hayward Ashworth, created on about 24 September 2020, a copy of which is Exhibit A, annexed to the affidavit of Francis Hugh Stott, solicitor, sworn on 12 April 2021 and annexed to the draft order accompanying the application, is a valid will of Maurice Hayward Ashworth.
(b)The order of this Court made on 11 June 2021, appointing Robyn May Buchanan and Natasha Leanne Mills as temporary administrators of the estate of Maurice Hayward Ashworth, pursuant to s 7 of the Administration Act 1969, be discharged at the time that the validated
deceased’s death meant that it was entirely possible that the deceased changed her mind about making a new will.
4 Counsel advises that the parties have separately dealt with signalled Family Protection Act claims as part of a wider resolution to be implemented after validation of the unsigned will.
will (appointing Natasha Leanne Mills and Kirsten Marie Boggi as executors) is admitted to probate.
(c)The costs of court-appointed counsel, representing the minor beneficiaries, of and incidental to these proceedings, be paid from the estate of Maurice Hayward Ashworth.
[31]The applicant is entitled to her costs from the Estate also.
[32] I direct the Registry to reimburse any prepaid hearing fee. The scheduling fee is not affected by the withdrawal of opposition.
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Walker J
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