Estate of Barnes
[2019] NZHC 1264
•6 June 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2019-463-000039
[2019] NZHC 1264
UNDER The Wills Act 2007 IN THE ESTATE
of JOSEPH SIDNEY BARNES
(Deceased)
AND
DOMINIC MARK BARNES and HELEN ELIZABETH BARNES
Applicants
Hearing: On the papers Counsel:
AAM Kershaw for the Applicants
Judgment:
6 June 2019
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 6 June 2019 at 9:15 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Ms AAM Kershaw, Hamertons, Solicitors, Whakatane
ESTATE OF BARNES [2019] NZHC 1264 [6 June 2019]
[1] The applicants, Dominic Mark Barnes and Helen Elizabeth Barnes, seek an order pursuant to s 14 of the Wills Act 2007 that a handwritten, signed document dated 28 July 2018 be declared the valid will of the deceased, Joseph Sidney Barnes.
[2] The applicants, the only two children of the deceased, seek leave for the application to be made without notice to any other person. The only other person who has an interest in the deceased’s estate, his wife, Joan Barnes, consents to the application made by her two children. Leave is granted accordingly.
Factual background
[3] On Thursday 26 July 2018, Brian Norman Carter, a solicitor from the law firm Hamertons in Whakatane, attended the deceased and his wife at their home. During the meeting, the deceased was sitting up, participating in conversation, and made his wishes clear to Mr Carter. Both the deceased and his wife instructed Mr Carter to prepare new wills for them both as they wished to severe the joint tenancy on their property at 14a Amber Gove, Whakatane, and create a life interest will in favour of each other.
[4] The instructions from the deceased included appointing his son, Mr Dominic Barnes, and his daughter, Ms Helen Barnes, to be the executors and trustees of the will. The instructions also included a life interest in his principal residence be given to his wife, with the residuary estate to be divided between his children.
[5] After the meeting on 26 July 2018, the deceased became quite unwell. Ms Helen Barnes tried to contact Mr Carter at home over the weekend to have him call urgently on the deceased as he was unwell. Mr Carter did not, however, receive her message until Sunday night.
[6] On Saturday 28 July 2018, Ms Helen Barnes, who is an accountant, hand drafted a will for her father to sign. She had been at the meeting between Mr Carter and her parents on 26 July2018, and knew the nature of the deceased’s instructions to Mr Carter.
[7] On Monday 30 July 2018, Mr Carter received a call to say that the deceased was no longer conscious, and he was therefore unable to see him to sign the will that he had prepared for him. On the same day, another solicitor from Hamertons attended on the deceased’s wife and had her sign an A & I Form severing the joint tenancy between herself and the deceased for their family home. Joseph Sidney Barnes subsequently died on 30 July 2018.
[8] It was the deceased’s intention to revoke all former wills and testamentary dispositions made by him and to have his new will take precedence. Mr Carter has sworn an affidavit stating his belief that the handwritten will prepared by Ms Helen Barnes is based on her father’s wishes as expressed to him in his meeting on 26 July 2018.
[9] After Ms Helen Barnes had prepared the handwritten will on 28 July 2018, the deceased signed the will in the presence of his daughter-in-law, Amanda Ngaire Rutter Barnes, who is the wife of the applicant, Mr Dominic Barnes. Ms Amanda Barnes then signed the will as a witness in the presence of the deceased. She then took the will to the residence of John Barry McCoy, where he signed as the second witness. Mr McCoy had the intention of attending on the deceased the following day to ensure that the will reflected his wishes. However, the deceased passed away before Mr McCoy was able to do so. Before the deceased signed the will, he read the will in the presence of Ms Amanda Barnes, and seemed to understand it thoroughly and have a full knowledge of its contents.
Analysis
[10] The handwritten document has the appearance of a will and has been signed by two persons. However, one of the persons who signed the will as a witness did not do so in the presence of the deceased. That is why the handwritten will is not valid in terms of the Wills Act.
[11] Section 8(1) of the Wills Act 2007 sets out the meaning of a will. That meaning includes a document made by a natural person, which disposes a property to which the person is entitled when he or she dies. Section 11 of the Wills Act sets out the
requirements for a will to be valid. These include that the document was signed by the will maker and witnessed in the manner required by that section.
[12] Section 14 provides that the High Court may declare to be valid a document that does not comply with s 11 if the document appears to be a will and was made in or out of New Zealand and the Court is satisfied the document expresses the deceased person’s testamentary intention. Section 14(3) provides that for that purpose the Court may consider the document, evidence on the signing and witnessing of the document, evidence on the deceased person’s testamentary intentions, and evidence of statements made by the deceased person. However, as stated by MacKenzie J in Re Campbell (Deceased),1 the Court may take into account any evidence that may assist in determining the deceased person’s testamentary intention.
[13] I consider the document comes within the meaning of the will in s 8. I am satisfied it was made by a natural person. It disposes of property to which the deceased was entitled to when he died. For the purposes of s 14, the document appears to be a will. I am satisfied from the affidavits sworn by the applicants, Ms Amanda Barnes and Mr Carter, that it was made on 28 July 2018. I am also satisfied by the affidavits that the document expresses the deceased’s testamentary intentions:
(a)It is headed “This is the last will and testament of Joseph Sidney Barnes of 14a Amber Grove, Whakatane”.
(b)It states that the deceased discussed his wishes with his lawyer, Mr Carter, on 26 July 2018 and wished to confirm that these wishes be carried out despite his formal will still being in the process of being prepared by Mr Carter.
(c)It purports to appoint his two children as executors of his will.
(d)It notes his intention to apportion the family home at 14a Amber Grove, Whakatane as tenants in common with his wife, Ms Joan Barnes, in
1 Re Campbell (Deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15].
equal shares, with Ms Joan Barnes being given a life interest in the property.
(e)He directs that his half share of the property is to be shared equally between his two children, Mr Dominic Barnes and Ms Helen Barnes.
(f)It is signed by the deceased as testator.
(g)It was signed by the deceased’s daughter-in-law and another person as witnesses.
[14] Therefore, in accordance in s 14(2) of the Wills Act 2007, I am satisfied the document expresses the deceased’s testamentary intentions.
[15]I make the following order:
(a)I declare that the handwritten document dated 28 July 2018, a copy of which is exhibited to the affidavit of Dominic Mark Barnes and Helen Elizabeth Barnes, sworn on 24 April 2019, is a valid will of Joseph Sidney Barnes, who died in Whakatane on 30 July 2018.
Woolford J