Estate of Clayton

[2014] NZHC 680

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-658 [2014] NZHC 680

UNDER	The Wills Act 2007
IN THE MATTER	of the ESTATE OF ROSEMARY ANN CLAYTON
AND
IN THE MATTER	of an Application for an Order under Section 14 of the Wills Act 2007 declaring a Will valid by PAUL MARTIN MASKELL and DENNIS JOHN CLAYTON

Hearing:	On the papers
Appearances:	JM Airey for Applicants
Judgment:	4 April 2014

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 4 April 2014 at 3:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Estate of R A Clayton [2014] NZHC 680 [4 April 2014]

[1]      Rosemary Ann Clayton died on 5 February 2014.  She was survived by her husband Dennis Clayton and her daughter Angela Allwood.

[2]      Mrs Clayton left a will dated 21 February 2003 (“the 2003 will”) in which Paul Maskell, a solicitor, and Mr Clayton were appointed executors and trustees.  By the terms of the will, Mr Clayton was given the right to occupy the home then owned by Mrs Clayton for as long as he wished.  Upon Mr Clayton’s vacating the property, it was to be transferred to Ms Allwood.   The will also divided the proceeds of Mrs Clayton’s superannuation scheme between Mr Clayton, Angela, and Angela’s children.

[3]      Mrs Clayton was diagnosed with cancer.   On 30 January 2014, she gave instructions to Mr Maskell to prepare a new will to take into account the sale of her former home and the purchase of another and other changes related to her financial affairs.  Mr Maskell made handwritten notes on a copy of the 2003 will and prepared a new will (“the 2014 document”) in accordance with the new instructions. Unfortunately, Mrs Clayton’s health deteriorated rapidly and the new will was never executed before she died.

[4]      Mr  Maskell  and  Mr  Clayton  have  applied  without  notice  for  leave  to commence this proceeding by way of originating application and seek a declaration under s 14 of the Wills Act 2007 that the 2014 document prepared by Mr Maskell on Mrs Clayton’s instructions is a valid will.   Angela supports the application and I apprehend that her children will not be disadvantaged by the orders sought.

[5]      I am satisfied on the evidence contained in the affidavits filed that: (a)          the 2014 document appears to be a will;

(b)      the document does not comply with s 11 of the Wills Act in that it was not signed by Mrs Clayton in the presence of witnesses;

(c)       the document came into existence in New Zealand; and

(d)      the 2014 document expressed Mrs Clayton’s testamentary intentions as given by her to Mr Maskell on 30 January 2014.

[6]      In these circumstances:

(a)       I grant leave to the applicants under r 19.5 of the High Court Rules to bring this proceeding by way of originating application; and

(b)      I make an order under s 14 of the Wills Act 2007 declaring the 2014 document to be a valid will.

.............................................

Toogood J