Estate of Brown

[2022] NZHC 858

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-27

[2022] NZHC 858

IN THE MATTER	of section 14 of the Wills Act 2007
AND
IN THE MATTER	of the Estate of John William Brown

On the papers
Counsel:	A D Goble for Applicants
Judgment:	28 April 2022

JUDGMENT OF ELLIS J

[1]                 John William Brown died on 30 May 2021, leaving a will dated 3 November 2010.

[2]                 Mr Brown’s former wife, Vanessa Louise Kelly and a solicitor Elspeth Jinny Horner are the name executors of the will. They now apply under s 14 of the Wills Act 2007 (the Act) to have another document declared a valid will or, more accurately, a valid codicil.1

[3]                 The document concerned is an email sent from Mr Brown’s email address to his solicitor, Mr Thomas Mahony, dated 12 May 2021, which simply states:

1      I note that s 8 of the Wills Act defines “will” in subsection (1) as a document made by a natural person that does the things listed in paragraph (b). But subs (3) expands that definition—for the purposes of (inter alia) s 14—to mean “a document that changes a will as defined in subsection (1).

Re Estate of John William Brown [2022] NZHC 858 [28 April 2022]

Hi Tom

RE: Update will²

Have sent two letters forgot one document so there are two courier letters addressed to you. Letter in each bag addressed to Stella Kelly Brown. Can I make Stella sole beneficiary to my will. I have a life insurance policy not sure if you have a copy.

Regards JB

[4]                 Stella Kelly Brown is Mr Brown’s only child: she is presently seven years old. Self-evidently, she was born after Mr Brown made his 2010 Will. Vanessa Kelly is Stella’s mother.

[5]                 The application is made without notice, on the basis that all persons who may be potentially affected by the granting of the order—being the beneficiaries named individually or by reference to their position as Trustees of two named Trusts—have formally consented to it.3 I am therefore satisfied it is appropriate that the matter proceed without further notice or service in accordance with r 7.23 of the High Court Rules 2016.

[6]                 I am satisfied that the 12 May 2021 email (which is annexed marked “B” to Mr Mahony’s affidavit sworn 17 December 2021):

(a)appears to be a codicil to Mr Brown’s 2010 will;

(b)does not comply with s 11;

(c)is a document that came into existence in New Zealand.

[7]                 And having read Mr Mahony’s December 2021 affidavit and in light of the surrounding circumstances (the birth of Mr Brown’s only child Stella and the separation of Mr Brown and Ms Kelly after the execution of the 2010 Will) I am also

2      There had been an exchange of emails a few minutes prior about the need to update Mr Brown’s will.

3      The beneficiaries of the will dated 3 November 2010 are Vanessa Louise Kelly, the trustees of the Postmaster Trust and the trustees of the Kelly-Brown Family Trust.

satisfied that the email expresses his testamentary intention, namely that Stella is to be the sole beneficiary under his 2010 Will. The email/codicil has the effect of amending clauses 4 and 6 of that Will but leaves the remaining clauses intact.

[8]                 I therefore grant the application and declare under s 14 of the Wills Act that the email dated 12 May 2021 (and sent at 2.31 pm) is a valid codicil to Mr Brown’s Will of 3 November 2010. The effect is that the Will of 3 November 2010 takes effect in terms of the appointment of the executors and so on, but is subject to the variation recorded in the email.

Rebecca Ellis J

Solicitors:

Mahony Horner Lawyers, Wellington for Applicants