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 the will before his death on 25 June 2013.

Requirements of a will

[8]      Section 11 of the Wills Act 2007 (“the Act”) describes the requirements of a valid will.  It provides as follows:

11       Requirements for validity of wills

(1)      A will must be in writing.

(2)      A will must be signed and witnessed as described in subsections (3)

and (4).

(3)      The will-maker must—

(a)      sign the document; or

(b)      direct another person to sign the document on his or her behalf in his or her presence.

(4)      At least 2 witnesses must—

(a)      be  together  in  the  will-maker's  presence  when  the  will- maker—

(i)       complies with subsection (3); or

(ii)      acknowledges that—

(A)      he or she signed the document earlier and that the signature on the document is his or her own; or

(B)      another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)      each sign the document in the will-maker's presence.

(5)       As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker's presence, the following:

(a)      that he or she was present with the other witnesses when the will-maker—

(i)       signed the document; or

(ii)      acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii)      directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv)      acknowledged that another person directed by him or  her  signed  the  document  earlier  on  his  or  her behalf in his or her presence; and

(b)      that  he  or  she  signed  the  document  in  the  will-maker's presence.

(6)       No  particular  form  of  words  is  required  for  the  purposes  of subsection (5).

[9]      The new will prepared in June 2013 did not meet the requirements of s 11.  It is neither signed nor witnessed.

[10]     The fact that the document does not comply with the requirements of s 11 does not necessarily mean that it cannot be validated as a will.  Section 14 provides the Court with jurisdiction to declare a will valid notwithstanding the fact that it does not comply with s 11.  Section 14 provides as follows:

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.

[11]     Under s  14(3), the Court  may take into  account  a number of  factors  in determining whether or not to declare a document valid as a will.  These include the document  itself,  evidence as  to  the signing  and  witnessing of the document  (if applicable), evidence as to the testamentary intentions of the deceased and evidence of statements made by the deceased person.

[12]     In  terms  of  s  14(1),  the  first  three  requirements  are  clearly  met.    The document was prepared as a new will for the deceased by his solicitor but was not executed before his death.

Procedural steps

[13]     The substantive proceeding is brought by the named executors and trustees of the   new   will.     The   1996   will   appointed   Russell   Byfield   and   a   solicitor, Gerald Dallison, to be executors and trustees.  Gerald Dallison died on 28 October

2011, and the named defendant in the present proceeding, Russell Byfield, is the surviving executor of that will.

[14]     The plaintiffs by way of application dated 9 April 2014 sought directions that the statement of claim, notice of proceeding and initial disclosure be served upon persons who could benefit from the 1996 will, the codicil thereto and the new will. By order of 30 April 2014 directions were made by Associate Judge Matthews that service be effected on the defendant Russell Byfield, the deceased’s two other children, Kathryn and Rachel, and his partner Ms Unwin.  These four persons have formally in writing acknowledged service and their intention to abide the decision of

this  Court.   In  the absence of any person directed to  be served  having filed a statement of defence and 25 working days having elapsed from the date of service on each person, the plaintiffs seek judgment by default and orders accordingly.

Decision

[15]     The  Court  must  be  satisfied  that  the  new  will  expresses  the  deceased’s

testamentary intentions.  In Re Zhu1 MacKenzie J observed:

The test whether the Court is “satisfied” does not import any particular standard or burden of proof.  The task of the Court is to evaluate the relevant circumstances and reach a conclusion.  I expressed some views on the proper approach in this context in Re Hickford.2    Because of the importance of a declaration that a will be declared valid, there must be cogent evidence to support any finding which is relied upon in determining that the Court is satisfied on the s 14(2) test.

[16]     The affidavit of the deceased’s solicitor, Mr John Dallison, confirms that the new will was prepared by him in strict accordance with the instructions given to him by the deceased.  The document is in draft form but otherwise in the format of a will. It is Mr Dallison’s belief that had the deceased not died he would have signed the new will.  None of the persons directed to be served have raised any objection with him in respect of the application to grant probate, nor that the will ought not be validated under s 14 of the Act as expressing the deceased’s testamentary intentions.

[17]     I am satisfied that while never signed by the deceased, the new will reflects his testamentary intentions as at the date of his death.  It reflects the instructions that he gave to Mr Dallison earlier the same month.  The reason the will was not signed and witnessed in the prescribed form appears simply to be that he had not attended to those formalities prior to his death shortly after giving his solicitor those instructions. The  document  reflects  those  instructions  and  there  is  no  reason  to  think  the deceased’s intentions had changed.

[18]     All persons named as beneficiaries in the wills at issue have been served with the proceeding.  Those persons are of full age and capacity and agree to abide the

decision of the Court. There is nothing on the face of the new will or which has been

1      Re Zhu (Deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010.

2      Re Hickford (Deceased) HC Napier CIV-2009-441-369, 13 August 2009.

brought to the attention of the Court by the deceased’s professional adviser or those served with the proceeding which raises concern.   The will’s contents appear consistent with and in furtherance of the apparent intent of the 1996 will and subsequent codicil.

[19]     Pursuant to s 14 of the Wills Act 2007, I therefore hold that the document described in the statement of claim as the new will, being a draft will prepared by Mr John Dallison, is the last will and testament of Owen McGlashan Byfield, and may be acted upon accordingly.

[20]     Messrs John Dallison and Russell Byfield are named as executors in the new will.  Both have deposed that they will faithfully execute the new will.

Orders

[21]     I make the following orders:

(a)       The  draft  will  of  June  2013  is  validated  as  the  last  will  of

Owen McGlashan Byfield, pursuant to s 14 of the Wills Act 2007.

(b)      Probate  is  granted  to  the  plaintiffs,  Messrs  Russell  Byfield  and

John Dallison.

(c)       That the plaintiffs’ costs be paid from the estate of the deceased.

Solicitors:

Malcolm Wallace, Christchurch