Estate of Clay - [2023] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-485-613894

CIV-2022-463-000113 [2023] NZHC 1726

UNDER the Wills Act 2007

IN THE MATTER

AND

of the Estate of HILARY ANN CLAY (Deceased)

IN THE MATTER

of an application by ROSS DAVID GEBERT

Applicant

AND

HANNA ELIZABETH CLAY

Respondent

Hearing: 27 June 2023

Appearances:

J Kay for the Applicant

Ms H Clay, in person, with Mr Andrew Clay (McKenzie Friend)

Judgment:

5 July 2023

JUDGMENT OF BECROFT J

This judgment was delivered by me on 5 July 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Eastbay Law Limited, Whakatane Copy to: H Clay

ESTATE OF HILARY ANN CLAY [2023] NZHC 1726 [5 July 2023]

The application

[1] In July 2022 Hilary Ann Clay (Hilary) instructed her lawyers to prepare her will. She did so at a face-to-face meeting in her home. Hilary had subsequent discussions by telephone and email with her lawyers and confirmed further details. About a month later, when the will was presented for signing, Hilary wanted one further amendment. She confirmed the will in all other respects. Within two days, her lawyers finalised her will. Four days later, before the will could be signed, cancer overtook Hilary and she passed away much earlier than expected.

[2] This is an application under s 14 of the Wills Act 2007 to declare that unsigned will as Hilary’s valid will.

[3] The application is brought by Mr Ross Gebert (Ross), a close friend of Hilary (but not romantically involved with her) by way of on-notice originating application.

[4] It is opposed, or at least not supported, by Ms Hanna Clay (Hanna), Hilary’s elder child. Hanna has separately applied to be granted Letters of Administration on the basis that her mother, Hilary, died intestate. That application awaits the outcome of this matter.

[5] At the hearing, Hanna was assisted by her half-brother, Mr Andrew Clay, who acted responsibly as a McKenzie Friend.

Background

[6] Hilary died on 16 August 2022, without leaving a valid will. She was a widow and was survived by two adult children – Hanna, the respondent, and Jason.

[7]Hilary apparently lived most of her life in Ōpōtiki.

[8] Given the terms of the unsigned will, it is important to set out her long-term friendship with Ross.

[9] Hilary met Ross in 1985 through her daughter Hanna. Ross and Hilary became close friends. It is clear from Ross’s affidavit that she provided him with significant ongoing support when he came out as being gay.

[10] Hilary and Ross became very close and were mutually supportive even when Ross moved to Australia from 1986 to 1991. He and Hilary remained in close contact and visited each other.

[11] In the 1990s Ross returned to Ōpōtiki and moved in with Hilary. In 1997 they purchased a house together at 53A Wellington Street, Ōpōtiki (the house) as tenants in common in equal shares.

[12] In December 2004…

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: [2023] NZHC 1726
Decision Date: 5 July 2023

CaseChat Overview and Summary

In this case, the High Court of New Zealand was called upon to determine whether an unsigned will should be recognised as the valid testamentary document of the deceased, Hilary Ann Clay. The application was brought by Ross Gebert, a close friend of the deceased, seeking validation of the unsigned will. The application was opposed by Hanna Elizabeth Clay, the deceased's daughter, who argued that her mother had not intended to leave the property as outlined in the unsigned will.

The legal issues before the court involved interpreting the Wills Act 2007, particularly Section 14, which allows the High Court to declare a document as a valid will if it appears to be a will, does not comply with certain statutory requirements, and expresses the deceased's testamentary intentions. The court had to assess whether the unsigned will in question met these criteria.

The court examined the circumstances surrounding the creation of the will, including the interactions between Hilary and her lawyers, and the content of the will itself. It considered the clear instructions Hilary gave to her lawyers, the email correspondence between Hilary and her lawyer regarding specific terms of the will, and the overall coherence and consistency of Hilary's intentions as expressed in the document. The court concluded that the unsigned will did indeed reflect Hilary's testamentary intentions, and that her failure to sign the will was due to her rapid decline in health rather than any change of mind.

The court declared the unsigned will to be the valid will of Hilary Ann Clay. The decision emphasised the importance of considering all available evidence to ascertain the deceased's intentions, and the court's discretion to validate a document that clearly expresses those intentions. The court also noted that costs should be borne by the estate rather than the opposing party.

Orders