Estate of Campbell

[2020] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000726

[2020] NZHC 2395

UNDER

Section 14 of the Wills Act 2007

IN THE ESTATE

of JOHN LINDSAY CAMPBELL

Deceased

BETWEEN

STEPHEN JOHN CAMPBELL and SHAUGHAN MARK CAMPBELL

Applicants/Executors

Hearing:	14 September 2020
Appearances:	N T C Batts for Applicants/Executors
Judgment:	15 September 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 15 September 2020 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Haigh Lyon, Auckland

Estate of JOHN LINDSAY CAMPBELL [2020] NZHC 2395 [15 September 2020]

[1]        Stephen John Campbell and Shaughan Mark Campbell apply for an order that a handwritten document signed on or about 7 October 2018 be declared valid as a codicil to the will of John Lindsay Campbell (deceased).

[2]        The applicants are the named executors of the deceased’s will dated 22 February 2007.

Preliminary procedural points

[3]        The application has been brought as an originating application. An application under the Wills Act 2007 is not among those applications listed under r 19.2, High Court Rules 2016 as applications that may be brought as an originating application. Leave is required under r 19.5. Leave is granted accordingly.

[4]        Directions as to service were sought. The application has been served in accordance with directions for service made by the Court on 26 May 2020. No opposition has been filed.

Background

[5]        At the time of his death the deceased was 80 years old. He is survived by his widow, Margaret Campbell-Huggins and his five children: Stephen, Shaughan, Tracey Hansen, Deane Hornsby and Alicia van de Ven. In addition, the deceased has nine grandchildren.

[6]        The deceased married Margaret on 14 February 2007 at Blenheim. Both had been previously married. In his will made just over a week after marrying Margaret, the deceased left all of his property upon trust to be used as to both income or capital as the trustees thought necessary for the maintenance, education, advancement or benefit of Margaret, his children and his grandchildren. On the distribution date, which was to be Margaret’s death, what was left was to be divided equally amongst his children, but in the event one or more of the children died before that date, their share was to be held for their children.

Parties’ positions

[7]        All the potential beneficiaries have either consented to the current application or have at least not taken any steps in opposition. Deane Hornsby’s response was the only one not directly in support. Deane pointed out in an email that the will dated 22 February 2007 appeared to be the correct last will. He noted that the handwritten note (the codicil, which the applicants seek to have confirmed under the Wills Act) was “quickly put together with little relationship to the legal trust document”. He also noted the date was wrong. It was not witnessed by a solicitor, who at least could have verified if the deceased was lucid. As such, he did not accept it was a legal document. He did, however, go on to state that he would like to know Margaret was looked after to enjoy her life in peace in healthy hands. He said he believed the trustees had the scope to do so and it was really up to them as to how they went about it.

Evidence

[8]        Margaret has sworn an affidavit in support of the application. She says that one day in October 2018 when she came home the deceased showed her a handwritten note clarifying his will. She recalls discussing the contents. After the deceased passed some two months later, she found the handwritten document in the deceased’s journal. The journal was essentially the deceased’s address or phone book he kept by the phone in the kitchen. Margaret confirmed the writing as being the deceased’s and that he signed it. I observe the signature on the codicil is similar to the signature on the original will. Margaret also confirmed that the contents of the codicil dealt with the same issues that the deceased had discussed with her when they discussed the document. She is confident that the codicil is the same document the deceased showed her, which they discussed together in October.

[9]        Margaret said that at the time they had the discussion in October 2018 the deceased was alert, engaged and lucid. While he had been physically ill he remained lucid even close to his death. She notes that the date on the codicil is 7 October 1918, which of course is impossible, but considers the correct date would have been 7 October 2018 because that would have been approximately the date that the deceased showed her the codicil document.

The codicil

[10]      The codicil document is headed “Last Will & Testament – John Lindsay Campbell” and is then dated 7-10-1918 with his address of 15 Rosewood Place, Blenheim NZ. The deceased then provides he wishes to “clarify my intention of my half share of our property at above address in Blenheim.” He then says on his passing “Margaret Campbell Huggins retains full ownership of property & all possession & chattels…”.

[11]      Counsel’s memorandum confirms that the only property in the estate was the deceased’s half-share in the parties’ residential home at the time, which was held as tenants in common.

[12]      The deceased then later says “on Margaret’s departure, whatever funds are left [after expenses] my share a 50/50 split of “property only” moneys shall be divided into 5...”. He then goes on to provide for equal division of any such residue between his five children.

[13]As noted, the deceased has signed the document, but it has not been witnessed.

The law

[14]      The application seeks to have the codicil declared valid under s 14 of the Wills Act 2007.

[15]      The pre-requisites for the application in this section are met. The document appears to be a will or codicil to a will. It does not comply with s 11 in that it has not been witnessed as required by s 11(4) and came into existence in New Zealand.

[16]      The Court may make an order declaring such a document, the codicil, valid if satisfied it expresses the deceased’s testamentary intentions.1

[17]The Court may consider:

1      Wills Act 2007, s 14 (2).

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased’s person’s testamentary intentions; and

(d)evidence of statements made by the deceased.

Discussion

[18]      The document itself is in the form of a will or testamentary disposition. It is expressed that way by the deceased. It is directed at the disposition of his property which at the time was his one-half share in the property at Rosewood Place. Margaret has confirmed the deceased and she were married for over 11 years at the time he made the will. On Margaret’s evidence the deceased wanted to provide what was to happen to that property on his death.

[19]      To that extent the transfer of his half share in the property to Margaret is consistent with the earlier provisions of the will although somewhat more express. In terms of the earlier will it would have been open for the trustees of the estate to apply all of the capital from the deceased’s estate to the benefit of Margaret if that was necessary for her maintenance. The codicil expressly transfers his one-half share in the property to Margaret, having identified the property as being “the above address”

– a reference to 15 Rosewood Place.

[20]      The document prepared by the deceased and signed by him was in form a very basic will. The reason for its invalidity is it was not witnessed as is required.

[21]      I am satisfied on the basis of the evidence before the Court that the document reflects the testamentary intentions of the deceased. The reason the document was not witnessed was oversight. I am also satisfied it reflects the deceased’s testamentary intention at the date of his death, approximately two months later. It is consistent with his intention to provide for Margaret as his widow.

[22]      As noted, with the exception of Deane, who has taken no steps to formally oppose, all the other relevant interested beneficiaries under the original will either consent to the orders sought or have taken no steps.

[23]      Counsel submits there is some urgency in obtaining probate of the last will and codicil. Margaret is reliant upon the sale proceeds of the property at Rosewood Place to purchase a unit at a retirement village. Due to her deteriorating health it is no longer safe for her to live in the property alone. There is a pressing need for the matter to be determined. I note that at the time of the deceased’s death in December 2018 (approaching two years ago) Margaret was 79.

[24]      Apart from the incorrect date, which I accept is a typographical error and nothing more, there is an issue as to the interpretation of the codicil. On one view of it, the codicil document is ambiguous in that it purports to deal with the deceased’s interest in the property at Rosewood Place, albeit that at an earlier part of the document, the deceased gave his interest in the property to Margaret. I read that particular clause as an expression of the deceased’s wish that, to the extent that there is anything of that share of the property remaining, Margaret would provide for his five children from her estate. That however is entirely dependent on there being some part of his share of the property remaining and would ultimately be a matter for Margaret.

[25]      I do not consider that issue to be a reason not to validate the codicil to give effect to the deceased’s wish to provide for Margaret, to whom he had been married for over 11 years by that time. As noted, the original will would on its terms, enable the trustees to apply the entire capital from the deceased’s half-share of the property for the benefit of Margaret in any event.

[26]      For the above reasons the Court is satisfied that the orders sought are appropriate.

Result/orders

[27](a)       leave is granted to commence the proceeding by originating application;

(b)the document executed by John Lindsay Campbell, on or about 7 October 2018, is a valid will document; and

(c)any costs of the application be paid as a first charge against the deceased’s estate.

Venning J