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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 2289
Decision Date: 1 September 2021

CaseChat Overview and Summary

James Lewis Baxter applied for an order validating an unsigned will prepared in 2007 by his father’s solicitor, David James Baxter. The application was opposed by two of James’s siblings, Charmaine Frances Baxter and Janice Madeline Hawker. The High Court was required to determine whether the draft will represented David’s testamentary intentions, and if the applicant had discharged the onus of proof on the balance of probabilities. The Court considered the close relationship between David and his solicitor, the lack of records demonstrating the signing of the will, and the absence of a signed will. The Court was satisfied that David signed a will on 22 November 2007, and the draft will produced to the Court was a copy of the document signed. The Court concluded that the applicant had met the onus of proof and the application was successful. The Court granted an order validating the 2007 will and ordered that probate of the will be granted to the applicant, James Lewis Baxter. The Court also ordered that the costs of the application be paid from the estate of the deceased, David, first to the applicant, James, and secondly, to the interested parties, Charmaine and Janice.

The key issue in this case was whether the draft will represented David’s testamentary intentions. The Court found that the evidence supported 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 signed the will prepared earlier and last modified in the word-processing system the day before. The Court rejected the argument that the absence of records demonstrating the signing of the will was fatal to the applicant’s case. The Court held that the applicant had discharged the onus of proof on the balance of probabilities and the application was successful. The Court’s decision was based on the evidence of the close relationship between David and his solicitor, the lack of records demonstrating the signing of the will, and the absence of a signed will. The Court held that the applicant had met the onus of proof and the application was successful.

Orders