Estate of Braithwaite

[2023] NZHC 198

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000005

[2023] NZHC 198

UNDER

Section 14 of the Wills Act 2007, and Part 19 of the High Court Rules 2016

IN THE MATTER OF

the Estate of

JENNIFER ANNE BRAITHWAITE

BY

GREGORY DOUGAL SINCLAIR ARNOLD

Applicant

Hearing:	[On the Papers]
Appearances:	F C Oback for Applicant
Judgment:	16 February 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 16 February 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:

P V Cornegé, Hamilton

Re ESTATE OF J A BRAITHWAITE [2023] NZHC 198 [16 February 2023]

[1]                  The applicant, Mr Arnold, applies for an order under s 14 of the Wills Act 2007 declaring a document to be the valid Will of Jennifer Anne Braithwaite (the deceased).

[2]                  Mr Arnold is the deceased’s brother and one of two executors named in her Will executed on 10 May 2018 (2018 Will). The second executor renounced her executorship on 6 May 2022.

[3]                  Between July 2021 and November 2021, the deceased instructed her solicitor to make specific amendments to her 2018 Will. The substantive amendments related to the distribution of the deceased’s golf cart and other vehicles. Under the 2018 Will, these assets were left to her family trust (the Ad Maiora Trust). Under the amendments, they were left to her Golf Club and children respectively.

[4]                  The solicitor prepared the amended Will. However, the deceased passed away suddenly on 17 March 2022 before she was able to execute the document.

[5]                  The trustees and beneficiaries of the Ad Maiora Trust have been consulted and consent to the application to validate the unexecuted amended Will.

[6]                  The application is supported by affidavits sworn by Mr Arnold and the solicitor who was instructed by the deceased to draft the amended Will.

[7]                  Based on the affidavit evidence, I am satisfied that the document sought to be validated is a draft Will which does not comply with the requirements of s 11 of the Wills Act 2007, as it is neither signed nor witnessed.

[8]                  Further, I am satisfied that the document reflects the deceased’s testamentary intentions. It is consistent with the deceased’s final instructions to her lawyer, and there is no evidence that the deceased changed her mind.

[9]                  In these circumstances, and in the absence of any opposition from those who would otherwise be affected, I am satisfied that the orders should be made.

Result

[10]The application is granted.

[11]              The  document  annexed   and   marked   “C”   to   the   affidavit   of   Gregory Dougal Sinclair Arnold dated 3 November 2022 is declared valid as the last Will of Jennifer Anne Braithwaite.

[12]              The applicant’s costs and expenses of and incidental to bringing the application are to be met from the estate of Jennifer Anne Braithwaite.

Edwards J