Estate of Banks

[2014] NZHC 1506

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1197 [2014] NZHC 1506

IN THE MATTER

AND

of s 14 of the Wills Act 2007

IN THE ESTATE

AND

of PEARL JUNE BANKS of Auckland, Widow

Deceased

IN THE MATTER

of an application by JULIA ATKINSON Applicant

Hearing:	On the papers
Appearances:	C E Harris for Applicant D J Jenkin for Mrs D Steel (counsel appointed to assist the Court)
Judgment:	2 July 2014

JUDGMENT OF LANG J

[on application for orders as to validity of Will]

This judgment was delivered by me on 2 July 2014 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Banks (In the Estate of) & Atkinson [2014] NZHC 1506 [2 July 2014]

[1]      In this proceeding Ms Julia Atkinson applies for an order under s 14 of the Wills Act 2007 declaring a document valid as comprising the late Pearl June Banks’ last will and testament.

Background

[2]      After  Ms  Banks’  death,  her  nephew,  Mr  Patrick  Steel,  discovered  two documents amongst Ms Banks’ papers that led him to believe that Ms Banks wished to amend her last will.  Her last will, the original of which was held by her solicitors, was dated 21 December 2000.  Ms Atkinson is one of the executors named in that will.

[3]      Mr Steel found a copy of the will dated 21 December 2000 amongst Ms Banks’ papers, and also another copy that had some handwritten amendments on it. These were recorded as having been made on 22 August 2010.  Mr Steel recognised the handwriting as being that of Ms Banks.

[4]      The handwritten amendments deleted legacies in the sum of $10,000 each in favour of Mrs Doreen Steel and Mr Nathan MacEvoy.  A bequest of a tea set to Ms Steel was also deleted, as was a bequest to Ms Atkinson of a doll and Ms Banks’ recipe books.   The amendments also made provision for a legacy in the sum of

$10,000 to be paid to Ms Banks’ nephew, Mr Murrie Stewart Purves and his wife Annette  Purves.    Finally,  the  amendments  removed  Ms  Merylyn  Gray  as  the recipient of Ms Banks’ residuary estate, and named Ngairia and Garrick Stephenson as residuary beneficiaries in her place.

[5]      The only persons detrimentally affected by the alterations are Ms Atkinson, Mr MacEvoy and Ms Doreen Steel.  The replacement of the residuary beneficiary has no impact because it would only have been given effect in the event that Mr Patrick Steel had pre-deceased Ms Banks.

[6]      Ms Atkinson has confirmed that she has no issue with the amendments being given effect.

[7]      I am grateful to Ms Jenkin, who was appointed by Cooper J as independent counsel to advise Mrs Steel.  She has now met with Mrs Steel, and is satisfied that Mrs Steel understands the nature and effect of the present application.  Mrs Steel has indicated to Ms Jenkin that she does not wish to receive the bequest of $10,000, and is happy that it be removed from the will.

[8]      Mr MacEvoy has lived in Australia since he moved there in 1992 at the age of seven years, and he has had no contact with Ms Banks’ family since that time. Extensive attempts to ascertain his present whereabouts have not been successful. Cooper J therefore directed on 19 June 2014 that the proceeding may proceed on the basis that it need not be served on him.

[9]      I am satisfied that the document with the handwritten amendments accurately reflects Mrs Banks’ testamentary intentions as at 22 August 2010.  I therefore make an order under s 14 of the Wills Act 2007 declaring that document valid as Mrs

Banks’ last will and testament.

Lang J

Solicitors:

Jackson Russell, Auckland
Bruce Dell Law, Auckland