Estate of Carr - [2019] NZHC 2647

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2018-419-0237

[2019] NZHC 2647

UNDER Part 19 of the High Court Rules and the Wills Act 2007

IN THE MATTER

of an application to validate a will

BETWEEN

DONNA HINEANEWA OLIVER

Applicant

Hearing: On the papers

Appearances:

R D Clark for the applicant

Judgment:

17 October 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 17 October 2019 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel:
Roger Clark Barrister, Hamilton

Re Estate Carr [2019] NZHC 2647 [17 October 2019]

[1]Barry Benjamin Carr died at home in Otorohanga on 9 September 2016.

[2] Among Mr Carr’s personal effects later was found a handwritten document, seemingly drafted in pencil, commencing with the introductory text:

THis is The Last wiLL and testament of Barry Benjamin Carr

mine me

of 1208 Otewa Road, Otorohanga. I appoint my daughter ~~Donna Hinean~~awa as executrix and trustee of this wiLL

The striking out of his daughter’s name appears to be in blue pen.

[3] The following five numbered paragraphs each identify a specific item of Mr Carr’s property – being interests in land, and photographs and a portrait of his mother – to be given individually to his son, three of four daughters, and a grandson (being the son of the fourth daughter). In paragraph 3, relating to a gift to her, the words “daughter Donna Hineanewa Oliver” similarly are struck out in blue pen.

[4] By this originating application, that daughter seeks validation of the document as her father’s will. Mr Carr’s widow and children, except one daughter, each consent to the application. All (including the non-consenting daughter and the grandson) have been served with the proceeding; none has taken any steps in opposition.

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—

(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 document, 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;1 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 Carr’s valid will if I am satisfied the document expresses his testamentary intentions. The…

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: [2019] NZHC 2647
Decision Date: 17 October 2019

CaseChat Overview and Summary

Donna Hineanewa Oliver applied for validation of a document as the will of her late father, Barry Benjamin Carr. The document was handwritten and contained erasures that appeared to remove her as the executrix and trustee, and as the recipient of one of the gifts. The application was made pursuant to section 14 of the Wills Act 2007, which allows the High Court to declare a document valid as a will if it is satisfied that the document expresses the deceased person’s testamentary intentions. The court must consider the document itself, evidence of the signing and witnessing of the document, evidence of the deceased person’s testamentary intentions, and evidence of statements made by the deceased person. The court held that the document was written in Mr Carr’s handwriting and was held with other important documents. Each of the specified gifts was of property valued by Mr Carr, and the document’s identification of the applicant as executor and trustee reflected serious considerations expressed by Mr Carr during his lifetime. The court was satisfied that the document expressed Mr Carr’s testamentary intentions, and the blue pen marks did not undermine the document’s expression of his testamentary intention. The court declared the document to be Mr Carr’s valid will.

The court ordered that the original of the document marked “A” annexed to the affidavit of Donna Hineanewa Oliver sworn 24 July 2018 be Mr Carr’s valid will.

Orders