Estate of Byfield - [2014] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000217 [2014] NZHC 1735

IN THE MATTER OF
THE ESTATE OF OWEN MCGLASHAN

BYFIELD

BETWEEN

RUSSELL OWEN BYFIELD AND JOHN VICTOR DALLISON

Plaintiffs

AND

RUSSELL OWEN BYFIELD Defendant

Judgment: 24 July 2014

JUDGMENT OF MANDER J (Dealt with on the papers)

Introduction

[1] This proceeding seeks orders declaring a document to be the valid will of Owen McGlashan Byfield, who died on 25 June 2013. Further orders are sought that probate be granted to the plaintiffs and their costs be paid from the estate of the deceased.

Background

[2] On 23 December 1996 Owen Byfield (“the deceased”) signed a valid will

(“the 1996 will”). It provided as follows:

(a) Russell Byfield (“the deceased’s son”) was granted an option to purchase the deceased’s property at 349 Port Hills Road, Christchurch, at a valuation to be agreed between him and the trustees
of the 1996 will.

RE: ESTATE OF BYFIELD [2014] NZHC 1735 [24 July 2014]

(b)The deceased’s partner, Jill Patricia Unwin, was given lifetime right of occupation and enjoyment of the principal residence owned by the deceased at his death.

(c) The residue of the deceased’s estate was left to such of his children as survived him and if more than one as tenants in common.

[3] The deceased was survived by his children, Russell, Kathryn, and Rachel.

[4] On 10 August 2012 the deceased signed a document which appears to have been intended as a codicil to the 1996 will (“the codicil”). The codicil provided that if the deceased’s partner, Ms Unwin, survived him then she was to receive:

All cash, money in bank accounts, fixed deposits, cheque accounts including any rents plus she is to have complete ownership of our jointly owned motor home Reg. No. KS4578 and our Subaru WI3095.

[5] The codicil signed by the deceased was witnessed in writing by his three children.

[6] On 5 June 2013 the deceased instructed his solicitor, one of the plaintiffs

Mr John Dallison, to prepare a new will as follows:

(a) The plaintiffs, Russell Byfield, and John Dallison, were appointed as executors and trustees; and

(b)The house and land owned by the deceased at 349 Port Hills Road was to be given to Ms Unwin free of all mortgages and other charges with all contents therein; and

(c) The rest of the deceased’s estate was to be held on trust to pay the deceased’s debts, funeral, monumental and administration expenses and then;

(i)To permit Ms Unwin to have the free use, income, occupation and enjoyment of the rest of the deceased’s estate during her lifetime; and

(ii)On the death of Ms Unwin the rest of the deceased’s estate to be distributed to the deceased’s surviving children, with a gift over to grandchildren in the case of children who did not survive the deceased.

[7] The new will was prepared in accordance with the deceased’s instructions by Mr Dallison and sent to the deceased in draft form. The deceased never signed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 1735
Decision Date: 24 July 2014

CaseChat Overview and Summary

The High Court of New Zealand, Christchurch Registry, was asked to determine whether a document prepared in June 2013, which was intended to be the last will and testament of Owen McGlashan Byfield, was valid. The plaintiffs, Russell Byfield and John Dallison, sought orders to have the document validated as the deceased's will and for probate to be granted to them. The defendant, Russell Byfield, who was the surviving executor of the deceased's 1996 will, did not contest the application. The court had to decide whether the draft will prepared in June 2013, which was never signed by the deceased, could be validated as his last will under section 14 of the Wills Act 2007.

The court considered the requirements for a valid will under section 11 of the Wills Act 2007 and noted that the draft will did not comply with these requirements as it was neither signed nor witnessed. However, the court also noted that section 14 of the Act provided it with the jurisdiction to declare a will valid even if it did not comply with section 11. The court must be satisfied that the document expresses the deceased's testamentary intentions. The court considered the affidavit of the deceased's solicitor, Mr John Dallison, who stated that the draft will was prepared in strict accordance with the instructions given to him by the deceased. The court was satisfied that the draft will reflected the deceased's testamentary intentions as at the date of his death and that the reason the will was not signed and witnessed in the prescribed form was that the deceased had not attended to those formalities prior to his death.

The court held that the draft will of June 2013 was the last will and testament of Owen McGlashan Byfield and validated it under section 14 of the Wills Act 2007. The court granted probate to the plaintiffs and ordered that their costs be paid from the estate of the deceased.

Orders