Estate of Capstick - [2018] NZHC 359

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-185

[2018] NZHC 359

UNDER the Wills Act, s 14

IN THE MATTER OF

the Estate of Paula Jane Capstick

IN THE MATTER OF

An application for an order that a document be declared a valid will of the deceased PAULA JANE CAPSTICK

BETWEEN

JONATHAN IRWIN FARQUHAR AND KATHRYN MARY SOMMERS

Applicants

Hearing: 7 March 2018

Appearances:

M M Bell for the Applicants

Judgment:

8 March 2018

JUDGMENT OF MANDER J

[1] The applicants, Jonathan Farquhar and Kathryn Sommers, seek an order under the Wills Act 2007 for a declaration that a draft will and a solicitor’s file note be declared to constitute the valid will of Paula Jane Capstick. The applicants were nominated by Ms Capstick to be her executors and trustees in the draft will.

The evidence

[2] On 12 February 2016, Lorrin Currie, a solicitor of Kaiapoi, took instructions from Ms Capstick over the phone to update her will. Ms Capstick had previously signed a will. However, as she explained to Ms Currie, she had been considering changes to her will for some time because her mother had passed away since the making of her last will in 2012.

RE ESTATE OF CAPSTICK [2018] NZHC 359 [8 March 2018]

[3] Ms Capstick had available to her a copy of her 2012 will, and Ms Currie took Ms Capstick’s instructions regarding the changes she wished to make. These were as follows:

(a)Executors: As her mother had passed away she was to be removed as an executor. Ms Capstick was happy to leave one of the existing executors, Mr Farquhar, as an executor, but wished to have her friend, Ms Sommers, added as an executor in substitution of her deceased mother.

(b)Special Gifts: Ms Capstick wanted her jewellery and her mother’s jewellery to be distributed among members of her second cousins, Dawn Farquhar and Lois Edwards’ families (the cousins), although her trustees were to retain the final say on who was to get what items. Ms Capstick specifically listed certain items of jewellery that had been passed to her from her mother and nana which she wanted to remain in her family. Ms Capstick also wanted a significant piece of jewellery to go to Ms Somers’ daughter, Jayde, but did not state anything specific.

(c)Residue: A half share in the residue of the estate to Ms Sommers’ children was to remain unchanged from the previous will. One quarter was to go to Neville Ahlfeld and one quarter to the grandchildren of the cousins. The age of attainment was to be 20 years, but Ms Capstick was very clear that the grandchildren should have the ability to access the funds for ongoing education and medical needs prior to reaching 20 years.

[4] These instructions were recorded by Ms Currie and annexed to her affidavit filed in support of the application.

[5] After taking instructions, Ms Currie prepared a new will which she posted…

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.

Keep reading for free

Create a free CaseChat account to read Estate of Capstick and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 359
Decision Date: 8 March 2018

CaseChat Overview and Summary

The applicants, Jonathan Farquhar and Kathryn Sommers, sought a declaration that a draft will and a solicitor's file note constitute the valid will of Paula Jane Capstick. Ms Capstick had nominated the applicants to be her executors and trustees. The applicants argued that the draft will and file note expressed Ms Capstick's testamentary intentions and should be declared her valid will. The court had to determine if the documents expressed Ms Capstick's testamentary intentions. The court found that the draft will and file note, taken together, expressed Ms Capstick's testamentary intentions to update her will. The applicants had provided evidence of Ms Capstick's reasons for wanting to change her will and the intended changes. Ms Capstick had gone through the draft will clause by clause with her solicitor and confirmed the amendments she wanted made. Although the draft will was not signed before Ms Capstick's death, the court found that it, together with the file note, accurately reflected her testamentary intentions. The court made an order declaring the draft will and file note to be the valid will of Paula Jane Capstick. The will revoked any previous wills, named the applicants as trustees and executors, and set out the distribution of Ms Capstick's estate according to her intentions as expressed in the draft will and file note.

Orders