Estate of Brownson
[2025] NZHC 302
•26 February 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-404-3277
[2025] NZHC 302
IN THE ESTATE OF RONALD DOUGLAS BROWNSON (DECEASED) MARK RUSSELL SUMMERVILLE AND CHRISTOPHER WITHIEL RUSSELL
THOMPSON
Applicants
Hearing: 12 February 2025 Counsel:
A J Walker and R A Harré for applicants
Judgment:
26 February 2025
JUDGMENT OF JOHNSTONE J
(application for order declaring document to be a valid will)
This judgment was delivered by me on 26 February 2025 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
McVeagh Fleming, Auckland
ESTATE OF BROWNSON [2025] NZHC 302 [26 February 2025]
[1] Mark Summerville and Christopher Thompson seek an order, under s 14 of the Wills Act 2007, declaring a document dated 31 December 2021 (the Document) to be the valid will of Ronald Douglas Brownson.
[2] For the reasons set out below, I am satisfied that, although the Document does not comply with the formal requirements for validity of wills set out in s 11 of the Wills Act, it appears to be a will, and it expresses Mr Brownson’s testamentary intentions. I intend to make the order.
The jurisdiction to declare wills valid
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.
[4] As indicated above, s 11 sets out the formal requirements for validity of wills. They include that the will is in writing, and is signed and witnessed in a prescribed manner.
Issues
[5] The Document is neither signed nor witnessed, and therefore fails to comply with s 11. The issues for determination were:
(a)Did the Document appear to be a will?
(b)Did it express Mr Brownson’s testamentary intentions?
(c)Should I exercise the Court’s consequential discretion to declare the will valid?
[6] In determining these issues, I considered the Document, and evidence of Mr Brownson’s statements and testamentary intentions, including evidence addressing the question why it was not signed or witnessed. This evidence was provided in the form of a joint affidavit, affirmed by Mr Summerville and Mr Thompson, filed in support of their application, and by affidavits of Robyn Harré and Tayla Fawkner, a solicitor and a legal secretary (respectively) of the firm McVeagh Fleming.
[7] The application was served as described below. No opposition was offered in response to the application. I accept, and provide the following outline, of the above evidence.
Mr Brownson’s family
[8] Mr Brownson died on or about 27 February 2023. Both his parents and his sole sibling, a brother, died before him. He was not survived by a de facto partner entitled to succeed on intestacy. He was not survived by any child.
[9] The applicants believe Mr Brownson’s mother to have been born in Scotland. Their recollection of their conversations with Mr Brownson, and their search of his papers, suggest that his mother had no siblings.
[10] Mr Brownson’s father had one brother who had nine children (Mr Brownson’s First Cousins), and two brothers who died without having had children.
Mr Brownson’s estate
[11] Mr Brownson left a substantial collection of artworks, catalogues, textiles, books, photographs and film, ceramics, and furniture, in the rented apartment in which he had been residing.
[12] Tony Walker, of McVeagh Fleming, was appointed as interim administrator of Mr Brownson’s estate. Mr Walker identified and secured Mr Brownson’s cash assets, and commenced applying them to (amongst other things) the cost of storing the collection in a large warehouse in Auckland.
Mr Brownson’s papers
[13] It appears Mr Brownson reflected from time to time upon the manner in which his estate might be disposed of upon his death. Mr Brownson’s papers were found to include a total of nine documents, or sets of documents, in a series (the Series) that might be conceived of as wills. Their dates range from 18 January 2005 to 2023. All documents in the Series fail to meet the formal requirements for validity of wills.
The Document
[14] The Document dated 31 December 2021, in respect of which the applicants seek a declaration of validity, is the eighth document in the Series. It describes itself as “Last Will and Testament of Ronald Douglas Brownson”. It commences by recording that Mr Brownson “revoke[s] all former testamentary dispositions made by [him] and declare[s] this to be [his] last Will”. It appoints Mr Summerville and Mr Thompson as executors, and gives each of them as well as Paul Mitchell, as legatees, an item of furniture plus $50,000. The balance of the estate is divided in equal shares between Julia Zivkovic and Angela Zivkovic, who are sisters and were close friends of Mr Brownson since their days at the University of Auckland. Mr Brownson kept in regular and close contact with the Zivkovic sisters throughout his life.
[15] The Document is unsigned and unwitnessed. It appears Mr Brownson prepared it, and sent it by email to Sarah Edmondson, a solicitor then employed at
McVeagh Fleming, on 17 October 2021. The substance of Mr Brownson’s email reads as follows:
I have attached two documents:
1.The first is the draft will prepared by you on 18 December 2020.
2.The second is a slight shift in focus.
3.Mark Summerville and Christopher Thompson become the essential executors.
4.If either of them passes away, I need you to act as one executor.
5.Julia Zivkovic and Angela Zivkovic will be offered the bulk of my estate.
6.We will deal with the art collection as part of a discussion in November.
7.Please look at the two wills, then can we have Microsoft teams meeting to discuss this?
8.I want the redrafted will signed on 31 December 2021.
9.Are you able to update my will and have a discussion possible by the date?
10.Where is your new office/ I realise that we cannot meet personally at present.
[16] The Document is what Mr Brownson described in his email as the second attachment. In light of the email, it is unsurprising that it is dated 31 December 2021.
[17] Ms Edmondson responded by email dated 19 October 2021, raising various queries, such as of the full name of Mr Summerville and of the beneficiaries, the identity of the alternate executor, and whether certain clauses were suitable or necessary in Mr Brownson’s circumstances. Mr Brownson responded by email advising he would answer Ms Edmondson’s questions in a few days.
[18] Mr Brownson and Ms Edmondson corresponded in December 2021, with a view to meeting. And Ms Edmondson prepared a draft will, reflecting the substance of Mr Brownson’s testamentary wishes as reflected in the Document. Ms Edmondson’s draft, the ninth document in the Series, left the full names and occupations of Mr Summerville and the Zivkovic sisters, and the identity of the
alternate executor blank. It appears Ms Edmondson anticipated receiving these details, and discussing her draft version of Mr Brownson’s will with him when they met. They did not meet. And there is no evidence of Mr Brownson being sent, let alone adopting, the draft. In the following period of around 14 months before Mr Brownson died, his attention must have moved to other matters.
[19] I accept that the year “2023” appears on the printed version of Ms Edmondson’s draft attached to the applicants’ joint affidavit as a function of McVeagh Fleming’s system for generating legal documents.
The Document appears to be a will, expressing Mr Brownson’s testamentary intentions
[20] Plainly, except as to matters of formality required by s 11, the Document appears to be a will. And it expresses Mr Brownson’s testamentary intentions.
Exercise of the Court’s discretion
[21] There is no evidence before me of Mr Brownson expressing any more recent testamentary intentions than those set out in the Document.
[22] The persons named in the prior documents in the Series who might, had those documents been valid wills, have received beneficial interests in Mr Brownson’s estate, have all either provided written consent to this application, or been served and chosen not to oppose. Service in the absence of written consent was undertaken personally, except in the case of the First Cousins, whom might have acquired interests by way of intestacy. Todd Walker, solicitors, advised in writing that they act for the First Cousins. I directed accordingly that the First Cousins be served by email addressed to Todd Walker. The First Cousins were served in accordance with that direction but similarly chose not to oppose.
[23] Where there is evidence of a deceased person’s testamentary intentions, it is better that those intentions be given effect in preference to intestacy.1 Similarly, in the
1 Bouwhuis v Bouwhuis [2023] NZHC 3195 at [17], citing Re Beaumont [2013] NZHC 2719 at [11]; and Re Campbell (dec’d) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].
present case, where the Document amounts to the most recent account of Mr Brownson’s testamentary intentions, that Document should be given effect.
Result
[24] Accordingly, I make an order in terms of s 14 of the Wills Act, declaring the Document, a copy of which is attached to the applicants’ affidavit marked “J”, to be the valid will of Ronald Douglas Brownson.
Johnstone J
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