Estate of Baxter

[2021] NZHC 2289

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000619

[2021] NZHC 2289

IN THE MATTER OF

THE ESTATE OF DAVID JAMES BAXTER

BETWEEN

JAMES LEWIS BAXTER

Applicant

AND

CHARMAINE FRANCES BAXTER AND JANICE MADELINE HAWKER

Interested Parties

Hearing:

1 September 2021 (with all participants via VMR)

Appearances:

M J Wallace for Applicant

J L Stanton for Interested Parties
Applicant - J L Baxter (Also in attendance via VMR)

Judgment:

1 September 2021

ORAL JUDGMENT OF GENDALL J

Introduction

[1]    James Lewis Baxter (James) is the son of the late David James Baxter (David) who died on 21 May 2020. James applies for an order validating an unsigned will prepared in November 2007 by David’s solicitor, (the draft will). James is the sole executor and beneficiary under the draft will. James’ application is opposed by two of his siblings, Charmaine Frances Baxter and Janice Madeline Hawker, with a third sibling, Caroline Wiggs, despite being served not participating in this proceeding.

[2]David’s estate, I am told is a relatively modest one comprising only about

$77,000 in cash savings held at the time of his death. As such, before me counsel have

RE ESTATE BAXTER [2021] NZHC 2289 [1 September 2021]

suggested a light touch only is required here and they contend the evidence and submissions they have provided has been done reflecting this.

The evidence

[3]    I turn now to the evidence before me. David was a client of a Christchurch solicitor, Mr Gerald Dallison (Gerald), who died on 28 October 2011. Gerald’s firm at the time was known as Harold Smith and Dallison. David and Gerald’s professional connection spans some four decades. Gerald’s son, John, worked in partnership with Gerald and continued to practice in the firm now known as Dallison Stone. There is no evidence that David used other solicitors other than the practice operated by Gerald and later John.

[4]    The evidence is David had a close working relationship with Gerald. Their dealings related to secured lending which David undertook through the firm and this work continued after Gerald died, which John took over. The firm would act on the registration of the mortgages taken by David and when those mortgages came to be discharged. The last discharge took place in 2018 with John saying he had no further direct dealings with David thereafter.

[5]    There was evidence in three separate affidavits from Leanne Tracey Hoy  (Ms Hoy), the trust manager of the firm in 2007 who in fact remains with the firm to this day. She describes the relationship between David and Gerald as being quite a close one which she says went beyond solicitor and client. As an illustration of the closeness between the two of them she notes David purchased a car previously owned by Gerald from his estate.

[6]    On David’s death, James made enquiries of John as to his father’s will. That James directed this enquiry to John at least shows who James understood acted for his father, David. John conducted a search of the wills records of the firm. He located a handwritten wills record, being a sheet of A4 paper with handwritten names in alphabetical order. Next to the entry “Baxter, David James” there is reference to a 2001 will, with the 2001 struck through and replaced with a handwritten 2007. Originals of neither the 2001 nor the 2007 will were located. Covered in the evidence of Ms Hoy in her 6 August 2021 affidavit is a detailed explanation as to how some of

the records of the firm were lost as a result of the destructive damage caused to the firm’s deeds room and offices in the Canterbury earthquake sequence of 2010/2011.

[7]    What the firm has been able to do is recover what James says is the 2007 will from its word-processing records. This is the draft will, printed from the firm’s word- processing records which it is sought to validate here. Also produced is a screenshot or printout of the wills list prepared by the firm as Word documents listed alphabetically. The entry for David is “Baxter D J (2007)” with the date modified recorded being “21 November 2007 at 10:47 a.m.”

[8]    Gerald’s diary for 2007 has also been located. A relevant November 2007 page of the diary is produced in evidence before me. On 22 November 2007 the words “Dave Baxter” appear in this diary suggesting David had an appointment with Gerald that day. Ms Hoy, the longstanding trust account manager of the firm, in her evidence says that it was Gerald’s practice to scribble through the entries in his diary once he had seen the client or completed the relevant task. The name Dave Baxter has been scribbled through. On this basis it appears from the word-processing records that the draft will was last modified the day before a meeting with David recorded in Gerald’s diary.

[9]    James, in an affidavit referring to the alphabetical list of wills held as Word documents, deposed “that digital index records that the firm had a will for D J Baxter in 2007 dated 21 November 2007.” It appears, however, to be a misunderstanding by James of what the digital index records. It does not purport to record the will was signed. The dates listed are under the heading “Date Modified”. Accordingly, it is more likely than not, given the 22 November 2007 entry in Gerald’s diary, that the will was finalised the day before that appointment in anticipation of being signed the next day.

[10]   The trust account manager, Ms Hoy, also explains how the firm’s then Manual Wills Index operated. Prior to 2011 the firm manually recorded clients’ wills it held in its Deeds Storage in a Wills Index. She explains that when a client signed a new will it was entered into the Wills Index either as a new entry at the end of the surname of the will-maker or by deleting the date of the prior will and inserting the year of the

new will. Significantly, the evidence is that entries were only made in that Index when a will was signed. Ms Hoy explains the system was designed to only record current wills prior to death.

[11]   From 2011 the firm electronically recorded new wills it was holding. There is no entry in that electronic register for a will for David. It is not explained whether the creation of the electronic record was a response to the Christchurch earthquakes.

[12]   There was also no indication in the firm’s records that Gerald raised an invoice to David for the preparation of a draft will in 2007. The suggestion is made that because of their close association and the fact that David was a longstanding commercial client that Gerald would not have charged for the will. The firm’s trust account records do not show any files after 2007 being created in relation to any new will instruction either.

[13]   John’s evidence is that after the death of his father, Gerald, the firm continued to have a number of professional dealings with David, concluding in 2018 with the discharge of the last of the mortgages held by David. There is nothing before the Court to suggest that David at any time used another law firm. That said, James as the applicant here, did not initially advertise as to whether another firm may hold a signed will for David.

[14]   As to Ms Hoy’s evidence regarding the firm’s general procedures undertaken over the years, John confirms the accuracy of this.

[15]   All of the matters I have outlined above represent essentially the extent of the evidence before me. A Word version of the 2001 will was also available and that has been produced. It differs from the 2007 draft will in that David’s estate was left equally to James and one of his sisters in the 2001 draft will.

The Law

[16]I turn now to the law in this matter. Section 14 of the Wills 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.

[17]   It is common ground the draft will meets the criteria for eligibility for validation under s 14(1). The draft will is invalid pursuant to s 11 of the Act as it is not signed or witnessed. It is also common ground that the burden of proof here rests upon the applicant, James, and must be discharged on the balance of probabilities.

[18]   The Court is entitled to adopt a robust approach in a s 14 application like the present. The Court must be satisfied the document sought to be validated represents the intentions of the deceased and I refer to the decisions of Caird v Caird1 adopted in Cox v Dobson.2

[19]   Mr Stanton, counsel for the two of James’s sisters who oppose the present application, also relies on the decision in Caird v Caird. At para 40 of that decision the Court said:

…it must be established on the balance of probabilities that the evidence as a whole, including evidence of the will-maker’s statements and testamentary intentions, that the document expresses that person’s intentions.

1      Caird v Caird [2018] NZHC 1605.

2      Cox v Dobson [2020] NZHC 2644.

[20]   Mr Stanton noted before me that the draft will excludes three of the deceased’s four children and it would therefore have been obvious to the draftsperson that the excluded children might have a claim against the estate under the Family Protection Act 1955. Mr Stanton submits one would have expected there to be accompanying letters, file notes or other records in relation to David’s will instructions and the reasons for not making provision for three of his four children. No such records exist.

[21]   Mr Stanton’s observations on this are well made but they are perhaps to an extent answered by the informality surrounding the preparation of the draft will. The impression one receives is of a senior practitioner dealing with a very long-term client, it seems without a formal file being opened, and not invoicing for the will. That is, of course, speculation as to what may have happened or been discussed but the absence of the material referred to by Mr Stanton, while relevant, in my view, is not conclusive here.

[22]   A further point that is well made by Mr Stanton before me is that there is no detailed explanation as to how the original will became lost. Mr Stanton submits too that there is no record of David’s instructions or of him actually signing the draft will.

[23]   I am satisfied here the real question, however, is whether the document sought to be validated is the same document as appears to be entered into the firm’s deed system as recorded in the manual wills register. The evidence of the longstanding trust account manager, Ms Hoy, confirmed by John, confirms that a will was only to be entered into the firm’s deeds packet system upon execution. Such evidence is not surprising. Draft wills were not retained in the firm’s deeds packet system. This would have been the case with most similar firms, as I see it.

[24]   Accordingly, on the balance of probabilities I am satisfied David signed a will in 2007, having attended on Gerald for that purpose on 22 November of that year. The appointment recorded in Gerald’s diary with David’s name being struck out in the diary indicates on the evidence that has been put before me that the task had been completed.

[25]   Mr Stanton submits the reference to Mr Baxter can be compared to other names on the diary which have times recorded next to their names but he claims there is no time recorded next to David’s name.

[26]   In reply submissions, Mr Wallace drew attention to a figure “8” which he contended could be seen to the left of Mr Baxter’s name in the diary entry, albeit partly obscured by the name being scribbled out. The entry “Dave Baxter” is the first on the page. The evidence of Ms Hoy, the trust manager, is that she particularly remembers greeting David on his numerous early arrivals at the office at 8 a.m. before other staff had even arrived. This seems to be consistent with what does appear to be an “8” next to the name in the diary presumably referring to 8 am that day. If Mr Stanton wanted to suggest that the diary entry was unreliable then that needed, as I see it, to be put directly in issue and it seems he has not done so.

[27]   As I have said, on balance, I am satisfied that David did sign a will on        22 November 2007. The next question is whether James has established on the balance of probabilities that the document sought to be validated is the document signed that day. As to that, I confirm at this point that I am so satisfied. Given the evidence is that the document to be validated was printed in the firm’s word-processing system and was last modified the day before the meeting on 22 November 2007, it is highly unlikely, in my view, that what was entered into the deeds system was some other will.

[28]   Mr Stanton notes that there appears to be another document on the list of Word document wills, labelled “Baxter D J” and under the heading of “Date Modified” is “19 May 2005”. That document has not been produced to the Court or explained. It would have been helpful to know what that document was, and I will address that to an extent at the conclusion of this judgment. It is relevant, however, that the 2005 will, if indeed it existed, would have been revoked had a later 2007 will been signed.

[29]   And, in reply on this aspect, Mr Wallace does say the 19 May 2005 date is common to a number of the other listed wills and I note that too.

[30]   Having concluded that David did sign a will on 22 November 2007, and that the draft will produced to the Court is a copy of the document he signed, the next issue is whether there is any evidence that David’s testamentary intentions changed from that time. James’ submission before me is that, given David’s longstanding connection to the firm of Messrs Dallison and that he did not seek to vary his will after 2007, it is safe to conclude he was content with the terms of that will.

[31]   In response, Mr Stanton correctly pointed out earlier that James had not advertised in the ordinary way for any other will David may have executed in the approximately 13 years between 2007 and David’s death in 2020. Recently, it has been remedied to an extent, as I note below.

[32]   Mr Stanton notes too that there are no witnesses or copies of the signed document, no record of David’s instructions and no correspondence with him in relation to those instructions or a physical file or indeed an invoice. Again, as I have noted above, these points are all well made. This evidence, however, as to what is absent, as I see it, is not an answer to the evidence as to what actually occurred.

[33]   As to that, Mr Stanton says that what he describes as a “single and inconclusive diary entry” does not mean Gerald and David met that day. In my view, this submission does not reflect the substance of the evidence which is before me. I do not accept Mr Stanton’s submission that as there is no evidence of David’s testamentary intentions in 2007 other than the draft will, the applicant James has not met the threshold for validation. The evidence supports the conclusion that David attended at his solicitor’s office on 22 November 2007, probably at 8 am as was his usual pattern for attendances and he signed the will prepared earlier and last modified in the word- processing system the day before, 21 November 2007. This was then entered into the firm’s deed system. Nor do I accept here that there is no real evidence of David’s testamentary intentions given all of the matters I have outlined above.

[34]   Overall, I am satisfied in this case on the evidence provided that James has met the onus of showing that the draft will does represent David’s testamentary intentions.

[35]   The present application before me is to succeed. But finally, for completeness, I note that in response to a direction from this Court James has advertised in a newsletter of the Canterbury Westland Branch of the New Zealand Law Society a request for practitioners to search for any will that they may hold in their records for David. That was done on 27 July 2021. No contact from anyone concerning a lost will has eventuated. The interested parties before me have confirmed that they take no issue with the steps taken now with regard to this advertising.

Result

[36]   Turning now to the result in this matter, for all the reasons I have outlined above, James’ application before me succeeds.

[37]Orders are now made as follows:

(1)an   order   is   made   that   the   2007   will   of   the    deceased, David James Baxter, a copy of which is annexed to the 15 December 2020 application filed in this proceeding is a valid will; and

(2)an order is made that probate of that 2007 will is granted to the applicant, James Lewis Baxter.

Costs

[38]   I turn now to the issue of costs with respect to this application. In my view, finality is required with respect to all matters which are now before the Court. Having said that and given the size of this estate, I propose to deal with the issue of costs at this point.

[39]   As to this, James seeks an order in his application that as the successful party here his costs should be paid from David’s estate. I am satisfied that is appropriate in this case.

[40]   So far as costs for the interested parties, Charmaine and Janice, are concerned I am satisfied here that their participation in opposing the present application was

reasonable. It arose because of matters outside their control, being the fact that no properly signed will of David had been located or provided. The evidentiary and other issues they have properly raised are relevant to the question of law which has been determined by this Court here. Their costs on a proper scale basis, in my view, should be met from the estate.

[41]   Overall then, on this issue of costs I conclude, therefore, that appropriate costs calculated on a category 2B scale basis together with reasonable disbursements, all as properly determined by the Registrar of this Court, are awarded here to be paid from the estate of the deceased, David, first to the applicant, James, and secondly, to the interested parties, Charmaine and Janice. An order to this effect is now made.

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

Gendall J

Solicitors:

Malcolm Wallace, Barrister, Christchurch Dallison Stone, Christchurch

Mortlock McCormack Law, Christchurch