Estate of Cockburn

[2019] NZHC 3152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002615

[2019] NZHC 3152

IN THE ESTATE OF JAMES McKENZIE COCKBURN

Hearing:	On the papers
Judgment:	2 December 2019

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 2 December 2019 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

DG Law Ltd, Auckland

re ESTATE OFJAMES McKENZIE COCKBURN [2019] NZHC 3152 [2 December 2019]

[1]        The applicants, David Graham, Christine Ding and Kelly McCullough, all of Auckland, solicitors, have filed an originating application seeking an order that an unsigned document be declared the valid will of the deceased, James Cockburn.

[2]        The application is made in reliance on s 14 of the Wills Act 2007. The applicants are the named executors in the document.

[3]The following are clear from the affidavits filed:

(a)On 8 July 2019, a legal executive employed by the law firm DG Law Ltd, Ms Park, met with Mr Cockburn to discuss updating his existing will, which was held by the Public Trust. Mr Cockburn explained to Ms Park that he wanted to remove the Public Trust as executor, and appoint the directors of DG Law Ltd as executors in its place. He also wanted to provide a cash gift of $20,000 to his friend Dianne Creed, and make some minor amendments to correct his occupation, his address and his daughter’s surname.

(b)Mr Cockburn subsequently provided Ms Park with a medical certificate confirming his testamentary capacity.

(c)Ms Park prepared a draft will based on Mr Cockburn’s instructions and emailed that draft to Mr Cockburn on 5 August 2019.

(d)Mr Cockburn arranged a further appointment to meet with Ms Park on 15 August 2019 to discuss the draft will. At that meeting, Mr Cockburn confirmed that he was happy with the draft, but that he wished to make some relatively minor changes to:

(i)increase the cash gift to Ms Creed from $20,000 to $25,000;

(ii)gift his furniture and car to Ms Creed; and

(iii)gift all of his jewellery and personal effects to his children to divide amongst themselves.

(e)At the meeting, Mr Cockburn also advised Ms Park that he intended to marry Ms Creed on 8 September 2019. Ms Park explained that the will would  be  revoked  on  the   marriage,   and   she   discussed   with  Mr Cockburn the option of making the will in contemplation of marriage. Mr Cockburn decided instead that he would come in and sign the draft will following his marriage. He made an appointment to come in and see Ms Park on 9 September 2019 to sign the will. Otherwise Mr Cockburn was happy for Ms Park to incorporate the changes noted above into the document. He did not require her to send an amended draft to him for his approval prior to signing.

(f)Ms Park prepared a final draft of the document in accordance with  Mr Cockburn’s instructions.

(g)Mr Cockburn died at Auckland on or about 21 August 2019.

(h)Ms Park did not receive any communication from Mr Cockburn after the meeting on 15 August 2019 and prior to his death, to the effect or intent that he wished to change any aspect of the draft will, or that he would not proceed with execution of the draft will as planned on 9 September 2019.

[4]        I am satisfied that the draft will prepared by Ms Park reflects Mr Cockburn’s testamentary intentions.

[5]        Mr Cockburn had made an earlier will executed on 23 March 1990. The persons who had a  beneficial  interest  under  that  earlier  will  were  Ms  Creed,  Mr Cockburn’s two sons and his daughter. All of these persons are aware of the application and all have provided consent to the application being granted. All were given the opportunity to obtain independent legal advice in relation to the provision of consent.

[6]        The Public Trustee, being the executor named in the earlier will, is also aware of the application and it has granted consent as well.

[7]        There does not seem to be any other person or entity who could he affected by the granting of the order sought, and Mr Graham, Ms Ding and Ms McCullough have sworn that they have not received notice from any other person or entity claiming any interest or entitlement in Mr Cockburn’s estate.

[8]        The draft will prepared by Ms Park is in the form of a will. It came into existence in New Zealand, but it does not comply with s 11 of the Wills Act, because it has not been signed. Nevertheless, I am satisfied that it represents Mr Cockburn’s testamentary intentions.

[9]        I make an order declaring the document to be the valid will of the deceased James McKenzie Cockburn. The draft order filed with the application is approved.

Wylie J