Estate of Cammell

[2022] NZHC 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1370

[2022] NZHC 2010

IN THE MATTER	of Section 14 of the Wills Act 2007
AND
IN THE MATTER	of an application by MARGARET GLENYS CAMMELL of Auckland, retired, for an order validating the Will of TERENCE ALAN CAMMELL, of Auckland, deceased.

Hearing:	On the papers
Counsel:	A W Johnson for the applicant
Date of judgment:	12 August 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 12 August 2022 at 5.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors:

Martelli McKegg, Auckland

RE ESTATE OF TERENCE ALAN CAMMELL [2022] NZHC 2010 [12 August 2022]

[1]                 As duty judge, I have Mrs Cammell’s without notice application for leave to commence proceedings by originating application to validate her late husband’s will.

Leave to commence

[2]                 An application for orders to declare a will valid under s 14 of the Wills Act must be made by originating application;1 no leave is required.

Without notice application

[3]                 Because I have the consent of all parties prospectively affected by the substantive application, I am satisfied both requiring Mrs Cammell to proceed on notice would cause undue delay or prejudice to her, and the interests of justice then require the application to be determined without serving notice of it. I therefore determine the application can properly be dealt with without notice.2

Background

[4]                 Mr Cammell died leaving a signed draft of his will marked with “alterations” and “clarifications” he intended to seek of his lawyers. His signature was appended in Mrs Cammell’s presence prior to his admission to hospital, where he later died.

Validation of wills

[5]Section 14 of the Wills Act 2007 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—

1      High Court Rules 2016, r 19.2(xa).

2      Rules 7.46(3)(a) and (e).

(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.

[6]  Section 14  applies  to  the  annotated  signed  draft  will,  because  it  (a)  is  a document; (b) appears to be a will in that it is made by a natural person and seeks to dispose of property to which the person is entitled when he dies;3 and (c) does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

[7]                 I may declare the document Mr Cammell’s valid will if I am satisfied the document expresses his testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.4 I am essentially to “evaluate the relevant circumstances and reach a conclusion”.5 I am to take “a robust approach”.6 In Re Campbell (deceased), MacKenzie J observed:7

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

Does the document express Mr Cammell’s testamentary intentions?

[8]                 The evidence establishes the document is annotated as to relevant detail and signed in Mr Cammell’s handwriting, expressly “together with [alterations/ clarifications] as requested by my wife, Margaret Cammell”, reflecting its intended mutuality with Mrs Cammell’s will. The circumstances of its making confirm

3      Wills Act 2007, s 8(1).

4      Balchin v Hall [2016] NZHC 837 at [11].

5      Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

6      Watt v Owston-Doyle [2015] NZHC 1292 at [12], citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

7      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

Mr Cammell’s testamentary intention and, moreover, afford rational grounds for being made in the circumstances.

[9]                 However, on this application for validation of the document as Mr Cammell’s will, I am not required conclusively to interpret the document. All I am required to do is to be satisfied the document expresses his testamentary intentions,8 for disposition of his property.9 For the reasons I have expressed in the preceding paragraph, I am so satisfied.10

Result

[10]              I declare the original of the document marked “B” annexed to the affidavit of Margaret Glenys Cammell affirmed 29 July 2022 to be the valid will of Terence Alan Cammell. I further direct the costs of this application be paid for out of the estate of Mr Cammell.

—Jagose J

8      Wills Act, s 14(2).

9      Section 8(1)(b)(i).

10 The application also is brought on grounds the document’s appointment of executors brings it within the statutory definition of ‘will’. There is an issue if s 8(1)(b)(iii)’s “testamentary guardian” is intended to include executors or trustees, particularly given s 8(1)(b)(ii)’s reference to “personal representative”. See Nicola Peart (ed) Family Property (online ed, Thomson Reuters) at [WB 8.02(2)]. In the circumstances I need not to decide that issue.