Estate of Bennett

[2017] NZHC 2481

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1836 [2017] NZHC 2481

UNDER

the Wills Act 2007 and Part 19 of the High

Court Rules

IN THE MATTER

of the Estate of Ronald Thomas Bennett

BETWEEN

GRAHAN RONALD BENNETT, MICHAEL RONALD BENNETT AND DAVID HUGH RISHWORTH Applicants

Hearing:	On the papers
Counsel:	R A Rose for Applicants
Judgment:	11 October 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 11 October 2017 at 12.00 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Bell Gully, Auckland

ESTATE R T BENNETT [2017] NZHC 2481 [11 October 2017]

Summary

[1]      The document purporting to be Mr Ronald Bennett’s last will did not, on its face, provide evidence that he signed it in the presence of the witnesses.  Neither are the  witnesses,  nor  anyone  else  present  at  the  time,  still  alive  to  provide  such evidence.  In these circumstances, I do not consider s 14 of the Wills Act 2007 (the Act) is available as a means of declaring the will valid.   Rather, applying the presumption of due execution, I consider the evidence provided by the executors of the will  demonstrates  the witnesses  were most  likely present  when  Mr Bennett signed the will.  This means the validity requirements in s 11 of the Act are satisfied and I declare that to be so.  That is a decision that can, ordinarily, be made by the Probate Unit of the High Court Registry.

The document

[2]      Mr   Ronald  Thomas   Bennett   was   a   Justice   of   the   Peace   who   was conscientious about maintaining his paperwork.   In 2004 Mr David Rishworth, at that time a consultant at Bell Gully, had acted as Mr Bennett’s solicitor on numerous occasions over the preceding 38 years.  On the basis of Mr Bennett’s testamentary instructions, Mr Rishworth prepared a simple five-clause document purporting to be Mr Bennett’s last will.  Mr Bennett signed and dated it 21 April 2004.  There are no indications of issues with Mr Bennett’s capacity at that time.  A similar document was prepared for and signed by his wife Mrs Fay Bennett, dated the same date.

[3]      Both documents were signed by witnesses Mr Franz Ostermann and Mrs Moya  Ostermann  who  were  neighbours  and  friends  of  Mr  and  Mrs  Bennett. However, they did not attest to having done so in the presence of the will-maker. They have since died.  No one else is known to have been present.  Mrs Bennett died in 2014.  Mr Bennett died on 28 April 2017.

[4]      Mr Graham Bennett and Mr Michael Bennett are Mr Bennett’s two children. They, together with Mr Rishworth, are the executors of Mr Bennett’s estate, which is relatively modest. There are no other beneficiaries.

[5]      On 29 May 2017 Bell Gully, which had applied for probate, was notified by a Deputy  Registrar  that  the  documents  had  not  been  accepted  for  filing  for  four reasons, including that the attestation clause did not state the witnesses signed in the presence of the will maker.  The other matters were rectified but the lack of evidence from a witness or other person present led Mr Graham Bennett, Mr Michael Bennett and Mr Rishworth to apply for orders declaring the document to be a valid will under s 14 of the Act.

Relevant law of will validity

Requirements for a will’s validity

[6]      The legal requirements governing how a will must be signed are relatively strict.   Section 7 of the Act provides a will is valid if it complies with s 11 or is declared valid under s 14.

[7]      Section 11 of the Act replaced s 9 of the Wills Act 1837 (UK).  It states:

11       Requirements for validity of wills

(1)      A will must be in writing.

(2)      A will must be signed and witnessed as described in subsections (3)

and (4).

(3)      The will-maker must—

(a)      sign the document; or

(b)     direct another person to sign the document on his or her behalf in his or her presence.

(4)      At least 2 witnesses must—

(a)      be  together  in  the  will-maker’s  presence  when  the  will- maker—

(i)       complies   with   subsection   (3)   [by   signing   the document]; or

(ii)      acknowledges that—

(A)      he or she signed the document earlier and that the signature on the document is his or her own; or

(B)      another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)      each sign the document in the will-maker’s presence.

(5)       As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a)      that he or she was present with the other witnesses when the will-maker—

(i)      signed the document; or

(ii)      acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii)      directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv)      acknowledged that another person directed by him or  her  signed  the  document  earlier  on  his  or  her behalf in his or her presence; and

(b)      that  he  or  she  signed  the  document  in  the  will-maker’s

presence.

(6)      No  particular  form  of  words  is  required  for  the  purposes  of subsection (5).

[8]      The requirements on the witnesses are stated in subs (2) and (4).  Relevantly, under s 11(4), the witnesses must be together in the will-maker’s presence when the will-maker signs the document and must each sign the document in the will-maker’s presence.     Section 11(5) empowers the witnesses to state exactly that on the document, “as evidence of compliance with subsection (4)”. But there is no requirement on the witnesses to make such a statement.

[9]      Alternatively, s 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.

Evidence of validity

[10]     As to evidence of validity, rr 27.16 and 27.17 of the High Court Rules 2016 provide:

27.16   Evidence as to execution

(1)       A person who knows the relevant facts personally may provide the evidence required by rules 27.17 to 27.28.

(2)       If the evidence relates to the fact, date, manner, or circumstances of the execution of a will, the person providing the evidence must be—

(a)      an attesting witness; or

(b)      a person present when the will was executed.

(3)       If the authenticity of the signature of the will-maker or an attesting witness is in doubt, the court may accept evidence from any appropriate person to prove that the signature is in the handwriting of the will-maker or the attesting witness.

(4)      If the application is unopposed, evidence given under this rule must be given by affidavit, and form PR 12 may be used.

27.17   Evidence of validity

Each of the following is evidence that a will is valid:

(a)      a statement by each of the witnesses on the will as provided in section 11(5) of the Wills Act 2007:

(b)      evidence given under rule 27.16 satisfying the court that the will complies with section 11(3) and (4) of the Wills Act

2007:

(c)      a copy of an order of the court made under section 14 of the

Wills Act 2007.

Presumption of due execution

[11]     A legal issue which arises here is whether r 27.16(2) excludes the possibility that evidence relating to the execution of a will can be provided by anyone other than an attesting witness or other person present at execution.  I do not consider it does, where it is not feasible to obtain evidence from those people.

[12]      On a strict reading of r 27.16(2) it could be argued that such evidence is not excluded because it does not relate to “the fact, date, manner, or circumstances of the execution of a will” since those matters are not within the direct knowledge of those who were not present. Rather, they are providing evidence of other facts which allow inferences to be drawn about an aspect of the validity of a will.

[13]     More purposively, consistently with the Act as amended in 2012, I interpret r 27.16(2) as identifying those people who are able to provide direct evidence of the execution of a will.  But I do not consider it excludes other, indirect evidence being provided to the Court as to how and whether s 11(4) was satisfied.  And the rule does not override the legal presumption of due execution which, since 2012, again applies to circumstances such as those here.

[14]     Dobbie’s  Probate  and  Administration  Practice  provides  support  for  this view, and authority for the presumption of due execution:1

27.34Affidavit  by  witnesses  not  obtainable  –  evidence  of  other persons present at execution

27.34.1      Best evidence available

If both the witnesses to the will are dead, or (for some other reason) an affidavit cannot be obtained from either of them, evidence must be obtained from anyone else who may have been present at the execution of the will.  If no affidavit of any such person can be obtained, evidence on affidavit must be obtained as to how and when the will was signed.  This should include available evidence of the deceased’s hand-writing and of the handwriting of

1      John Earles and others Dobbie’s Probate and Administration Practice (LexisNexis NZ Ltd, Wellington, 2014) at [27.34] [Dobbie].

the witnesses and also of any circumstances which may raise a presumption in favour of the due execution of the will.2

27.34.2      Presumption of due execution

If evidence cannot be obtained to prove due execution and the will appears on its face to have been duly executed, the court will presume the will was properly completed.   This applies where there is a defective attestation clause,3  or no attestation clause,4  or where there is a conflict of evidence between the witnesses to the will.5   The court may apply the presumption of due execution where evidence of due execution cannot be obtained, and there is no suspicion that fraud has occurred.6

27.34.3      No attestation clause

In a case where there is no attestation clause, the court before applying this principle may require notice of the application to be given to the next of kin.7

27.34.3      Insufficient attestation clause

An affidavit of due execution was called for where the attestation clause did not record that the deceased signed in the presence of the witnesses.8

[15]     I have reviewed the cases cited in these passages of Dobbie.   I agree they support the presumption of due execution of a will being an established part of New Zealand law when s 9 of the Wills Act 1837 (UK) applied.   In 1902 in England, Jeune P cited two principles In the Goods of Frances Peverett: “the Court is always extremely anxious to give effect to the wishes of persons if satisfied that they really are their testamentary wishes” and “the Court will not allow a matter of form to

stand in the way if the essential elements of execution have been fulfilled”.9   While

acknowledging he was “going to the furthest limit” he applied them where there was a total absence of an attestation clause.  Sim J applied the presumption, using a Latin label, in the New Zealand Supreme Court in 1914 as did Stout CJ in 1919, Turner J in 1954, Tompkins J in 1968 and Thorp J in 1986.10   Thorp J appropriately qualified

the presumption as not normally applicable unless those who would stand to benefit

2      See High Court Rules, r 27.16.

3      In the Goods of J W Puddephatt (1870) LR 2 PD 97 (Prob).

4      In the Goods of Frances Peverett [1902] P 205 (Fam); In re Fergus (1914) 34 NZLR 48 (SC).

5      In re Irwin [1920] NZLR 440 (SC).

6      Re Young [1969] NZLR 454 (SC).

7      In re Archibald [1919] GLR 350 (SC see also Dobbie, above n 1, at ch 5 (“Requirements for

Making a Will”).

8      Re Carty HC Nelson P106/86, 2 July 1986.

9      In the Goods of Frances Peverett, above n 4, at 207.

10     In re Fergus, above n 4, at 49; Re Young, above n 6, at 459; In re Griffiths (deceased) (1955) NZLR 127 (SC) at 130; In Re Harvey HC Whangarei P504/85, 14 January 1986 at 3–4.

from a finding against due execution are given the opportunity to present contrary evidence.11

[16]     This  pragmatically  flexible  approach  to  the  validity  of  wills  is  entirely consistent with the legislative history and purpose of the 2007 Act as amended in

2012.   The draft bill proposed by the Law Commission in 1998 sought simply to restate s 9 of the 1837 Act.   That was different to the text of s 11 as originally enacted in the 2007 Act, which required the witnesses to each state on the document that they were present when the will-maker complied with subs (3).  As the High Court observed, and expressed concern about in decisions from 2009 to 2011, that wording meant the presumption of due execution,  based on an affidavit of due

execution,  could  not  overcome  invalidity  for  lack  of  an  attestation  clause.12

Parliament responded by enacting the Wills Amendment Act 2012.  The Government Administration Committee which considered the Bill stated, regarding the clause that effected changes to s 11:13

When the Wills Act 2007 was passed the main policy intention was that it carry forward, in plain language, the formalities for making a will contained in its predecessor, the Wills Act 1837 (UK). The only changes intended were that a will-maker should no longer be required to sign at the “foot or end” of the will, and that the High Court should be able to declare a document to be a valid will, even if it does not meet the formal requirements, if it is shown that the will-maker intended the document to be his or her will.

However,  section  11  of  the  Wills  Act  2007  may  have  unintentionally imposed two new requirements. Section 11 does not say that a willmaker may first sign the will and subsequently, when the witnesses are present, acknowledge that the signature on the will is the willmaker’s own. Under the

1837 Act it was possible for a will-maker to acknowledge a pre-existing signature in front of the witnesses, but section 11 does not carry forward the

wording in  section 9 of the  1837 Act.  In  addition, section 11 could  be

interpreted to require the witnesses to make a statement, known as an attestation clause, on the will, rather than just sign it. An attestation clause was not required under the 1837 Act.

These unintended changes have caused uncertainty about the formal requirements for a document to be a valid will. Some wills that would have been valid under the 1837 Act may not be valid under the 2007 Act. In particular, the 2007 Act may have retrospectively invalidated wills made

11     In Re Harvey, above n 10, at 3.

12     Re Lincoln (Deceased) HC Auckland CIV 2009-404-3402, 17 July 2009 (per Asher J); Re Fry

HC Nelson CIV-2009-442-298 (per Allan J), 21 September 2009; Re Drury (Deceased) (2010)
28 FRNZ 170 (HC) at [9] (per Mackenzie J); In the Estate of Leith HC Invercargill CIV-2011-

425-3379, 5 December 2011 at [6]–[9] (per Mackenzie J).

13     Statutes Amendment Bill 2011 (No 2) (271-2) (select committee report) at 1–2.

before 1 November 2007, when the 2007 Act came into force. For example, a will may have been valid when it was made, but because it did not have an attestation clause the 2007 Act may have invalidated it. We are aware of concern that the amendments in Part 20 of the bill, particularly those in clause 93, are too contentious for a Statutes Amendment Bill. However, we consider that they are suitable for  such a bill because clause 93 simply carries forward the law on the formalities for making a will under the 1837

Act, correcting the unintended effects of the changes that have been made by the 2007 Act. There has been no change to the policy intent.

[17]    The Ministry of Justice advised the Committee that under the proposed amendments:14

Although a valid will would not need an attestation clause, it would still be highly desirable for a will to contain an attestation clause. If a will contains an attestation clause, then that clause is evidence that the will has been validly executed.15 If it does not contain an attestation clause, an affidavit of due execution may be required before probate is granted.

[18]     On this basis I am satisfied that the presumption of due execution survives the  2007  Act,  as  amended  in  2012.     Rule  27.16(2),  the  text  of  which  was promulgated with the 2007 Act but not amended after the 2012 Amendment Act, does not override the presumption.  It must be read in light of the presumption and does not exclude other evidence of validity being adduced to prove compliance with s 11(4).

Should Mr Bennett’s document be declared a valid will?

[19]     Here, there was no attestation clause in Mr Bennett’s document satisfying s 11(5) or otherwise providing evidence that s 11(4) was satisfied.   Neither can evidence  be  provided  by  a  witness  or  by  a  person  present  when  the  will  was executed, or anyone else who knew the facts personally under r 27.16, since all those people have since died.  This circumstance, which may not be uncommon, illustrates the importance of including in a will an attestation clause along the lines of s 11(5) or an alternative clause that provides evidence of compliance with s 11(4).

[20]     Accordingly, the executors apply for the document to be declared a valid will under  s  14.    They  filed  affidavits  by  Mr  Rishworth,  Mr  Graham  Bennett  and

Ms Brigit Morrison, a Senior Associate at Bell Gully, concerning what is known

14     Ministry of Justice Statutes Amendment Bill (No 2): Departmental Report (2 June 2011) at [46].

15     High Court Rules, Rule 27.17 (citation in original).

about the signing and witnessing of the document. All the relevant parties were served.  The evidence is persuasive in supporting an inference that the document was most  likely signed  in  the  presence  of  the  Ostermanns.    Factors  supporting  this conclusion include:

(a)      Mr Bennett’s careful and conscientious approach to following legal requirements as a former Justice of the Peace;

(b)the  clear   written   instructions   Mr  Rishworth  gave   Mr  Bennett emphasising the importance of having witnesses who are present at all times throughout execution, and who must watch him and each other sign;

(c)      the fact the Ostermanns signed documents for Mr and Mrs Bennett on the same date and had previously witnessed earlier wills of Mr and Mrs Bennett in 1999; and

(d)      the Ostermanns’ proximity to the Bennetts as neighbours and friends.

[21]     I do not consider s 14 is the correct legal route to determining the validity of the will in these circumstances.  Section 14 is available only when a document does not comply with s 11, according to s 14(1)(b).   This includes the requirement in s 11(4) that Mr and Mrs Ostermann were together in Mr Bennett’s presence when he signed the document and that they signed it in Mr Bennett’s presence.   But the application under s 14 here proceeds on the basis there was not a sufficient prima facie evidential foundation that the requirement was met.  Instead, they provide other evidence to support an inference that it did.

[22]     The evidence provided demonstrates, on the balance of probabilities as a matter  of  inference,  that  the  document  was  signed  in  the  presence  of  Mr  and Mrs Ostermann.  If I accept that evidence, as I do, then s 11(4) of the Act is satisfied and s 14 is not available.  I do not regard r 27.16 as limiting the High Court’s ability under  the  2007 Act,  as  amended  in  2012  to  conform  with  pre-existing  law,  to

consider the best evidence of the substance of compliance with s 11(4) and to apply the presumption of due execution.

[23]     That means there is no need to validate the will under s 14.  Indeed, I cannot, since s 14(1)(b) requires me to be satisfied that the document does not comply with s 11,  including  s  11(4).    Instead,  on  the  basis  of  the  evidence  offered  by  the applicants, I am satisfied the document complies with s 11(4).

[24]     The effect of this is the same as the effect sought by the applicants: the document is valid.   But, in future such cases, applications under s 14 will not be required.   Sufficient evidence of compliance with s 11(4) will be required, on the basis of which the presumption of due execution may be applied.  Other parties with a relevant interest will need to be notified and have the opportunity to object.  The evidence can be assessed by the Probate Unit of the Registry.  Irregularities in form can be addressed under rr 1.5 and 1.9, without necessarily requiring rejection of documents.   If a Registrar is in doubt about the correctness or legitimacy of an application, he or she can refer an application to a judge for consideration.

Result

[25]     I  declare  the  document  purporting  to  be  Mr  Ronald  Bennett’s  last  will complies with s 11(4) of the Act. Accordingly, it appears to meet the requirements to be a valid will.  I waive any application fee for a renewed application for probate on that basis.

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

Palmer J