Estate of Burnett

[2013] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-981 [2013] NZHC 1725

IN THE MATTER

IN THE MATTER

of s 14 of the Wills Act 2007

of the Estate of VICKI ANN BURNETT

ANDRICHARD JOHN BURNETT Applicant

Appearances:           HDP van Schreven

Judgment:                8 July 2013

JUDGMENT OF FOGARTY J

[1]      The Court has before it two applications.  The substantial application is for order declaring a will to be valid. The interlocutory application is for appointment of executors and for probate in solemn form.

[2]      The deceased was Vicki Burnett.  She was a horse trainer by application, as is her husband, the applicant.

[3]      In April 2012, she gave instructions to Mr J S Angland, a very experienced Canterbury practitioner, at his Leeston office.  The instructions were in respect of a will that she wished to make.  Mr Angland recorded those instructions as he received them at that interview.  Mr Burnett has deposed that he commenced living with his deceased wife in July 2009, they being married in September 2011.  Vicki had two children to her previous marriage.   Her son, Thomas, was born in 2005 and her

daughter, Ellie, in 2009.  He and Vicki had no children of their own.

Estate of BURNETT [2013] NZHC 1725 [8 July 2013]

[4]      Following Vicki’s death, he has applied for a guardianship order together with her children’s maternal grandmother, Carolyn Priest.   They were granted guardianship of the children by the Family Court in August 2012.

[5]      The main assets owned by Vicki at the time of her death were land and buildings in Doyleston, a rural district.   That is where the couple lived with the children.   The couple had a horse training and racing business, the income from which services the loans due in respect of that property, which are of the order of together $450,000, against a capital value of $1.5 million.

[6]      In her instructions to Mr Angland in his office in April, Vicki wanted to leave a life interest in her estate to her husband, with a gift-over to her children at the age of 20 years.

[7]      About a fortnight later, on 30 April, Mr Angland received a telephone call from Vicki advising she had changed her mind, and wanted her will to record that her husband was to receive the race horses and business.  Mr Angland’s note reads:

Wants to form a family trust.   Has changed her mind.   Want to leave the horses and training businesses (not house and lands) to Richard.

(The underlining is part of the original note.)

[8]      In the month after that date, Mr Angland drafted a will according to those instructions as amended.  By the intended will, she would appoint her husband, her sister, Jenny, and her mother, Carolyn, as the executors and trustees of her will.  She appoints her husband as the guardian of Thomas and Ellie during their minority.  She gives her horse racing and horse training business to her husband, free of all debts and charges, she directs that the trustees hold the rest of the estate on trust to pay her debts and funeral expenses, etc, and to give her husband free use of the residue and income from it for his lifetime.

The obligation in the will, that her husband pay the rates, insurance premiums, mortgage interests and principals

[9]      The accounts of the racing and horse training business treat the land as an asset of the business.  The terms of the draft will, however, make it clear that that is not how the assets are bequeathed by the will.  Clause 4 of the will provides:

Gifts

4.        I give my horse racing and horse training business known as Euroch

Lodge to my said husband RICHARD free of all debts and charges.

Residue

...

5.2To let my said husband RICHARD JOHN BURNETT have the free use of the residue (“my residuary estate”) and the income from it for his lifetime on these terms and conditions:

(1)       He will pay the rates, insurance premiums mortgage interest and  principal  repayments  (if  any)  and  other  outgoings usually paid from income on my residuary estate.

(2)       He will keep my residuary estate in the same condition it is in  at  my  death.    My  trustees  may  put  any  part  of  my residuary estate not in good condition at my death into good condition to my trustees’ satisfaction and charge the cost to the capital of my residuary estate.  If my trustees do so then my husband must keep it in that improved condition to the satisfaction of my trustees.

(3)       He will not be responsible for any damage or loss to my residuary estate caused by fire, earthquake, storm, or other inevitable event.

[10]     The draft will was sent to her by mail.  It was sent to her at the end of May.

[11]     On 23 July, Mr Angland received a phone call from her husband informing him that Vicki had just passed away.

[12]     In the period between the end of May and 23 July, approximately seven weeks, Mr Angland had no contact with Vicki.  He has deposed he has no reason to believe that Vicki required any changes to the draft will, or that she did not intend to sign it.  He has searched via the New Zealand Law Society for any missing Wills. He records that her husband has filed a notice of choice in the High Court, electing

not to make an application under s 61 of the Property (Relationships) Act following receipt of independent legal advice from Mr Brown of Rhodes & Co.   His advice was that he would more likely receive a greater interest in his wife’s estate on an intestacy basis, than by supporting the recognition of this unsigned will.  But he has advised Mr Angland that he would rather honour Vicki’s last wishes in terms of the will, than proceed on an intestacy basis.

[1]      Parliament has enabled the Court to deal with situations such as this.  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.

[13]     Section 14(2) applies.

[14]     The document is declared the valid will.

[15]     Accordingly,  the  application  for  order  declaring  the  will  to  be  valid  is granted.  There is an order declaring that pursuant to s 14 of the Wills Act 2007, the document   prepared   by   the   deceased’s   solicitor,   John   Shearer  Angland,   on instructions of the deceased (“the document”) is a valid will.

[16]     The application for appointment of executors and for probate in solemn form is granted:

(a)      Appointing the applicant Richard John Burnett of Doyleston, horse trainer, Jenny Louise Westwood of Auckland, mother, and Carolyn Gay Priest of Auckland, retired, as the executors of the will of the deceased; and

(b)That probate in solemn form of the will of the deceased be granted to them.

Solicitors:

Clark Boyce, Christchurch