Estate of Coombs
[2019] NZHC 116
•11 February 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV 2018-419-000379
[2019] NZHC 116
UNDER Section 14 of the Wills Act 2007 IN THE MATTER
Of the Estate of Kenneth Peter Coombs
AND
RUSSELL PETER COOMBS and SHARON ANNE MARTIN
Applicants
Hearing: On the papers Appearances:
M R Hunwick for Applicants
Judgment:
11 February 2019
JUDGMENT OF VAN BOHEMEN J
Solicitors:
Hunwick Law Ltd
Estate of Kenneth Peter COOMBS [2019] NZHC 116 [11 February 2019]
Introduction
[1] The applicants, Russell Peter Coombs and Sharon Anne Martin, seek an order pursuant to s 14 of the Wills Act 2007 that an unsigned and undated document be declared a valid will of the deceased, Kenneth Peter Coombs.
[2] The applicants are the only two children of the Deceased and seek leave for the application to be made without notice to any other person. As discussed below, the applicants have established that the Deceased has no other children. Leave is granted accordingly.
Relevant background
[3] The Deceased died in Hamilton on 14 May 2018. The Deceased’s wife had predeceased him.
[4] In an affidavit sworn on 26 November 2018, the applicants say that after their father’s death, they found a document that purports to appoint them as the Deceased’s executors and to leave to them in equal shares all the Deceased’s estate upon payment of debts, funeral and testamentary expenses and all other expenses payable by his estate.
[5] The document has the appearance of a will and has been signed by two persons, Kevin Robert Dornauf and Alan John Jones, as witnesses. But the document is undated and has not been signed by the Deceased. As a consequence, the applicants have been unable to obtain letters of administration under the Administration Act 1969.
[6] Mr Dornauf and Mr Jones have sworn affidavits saying they attended the deceased’s home some time in 2013 for the purposes of witnessing a document that the deceased said he had prepared himself and which the deceased said was his will. Mr Dornauf and Mr Jones say they became distracted by other things when talking with the deceased and they then signed the document in some haste before departing. They expected that the deceased would also sign but left without seeing that he had signed. Mr Dornauf and Mr Jones say they support the applicants in their application.
[7] The applicants say they have made reasonable enquiries for the purposes of the Status of Children Act 1969 as to the existence of other children of the Deceased. They exhibit a letter dated 13 June 2018 signed for the Registrar-General of Births, Deaths, Marriages and Citizenship of the Department of Internal Affairs, certifying that there is no order, declaration or instrument in the name of Peter Kenneth Coombs in the indexes of the registers of paternity orders, declarations of paternity or other evidence of paternity maintained by the Registrar-General.
[8] The applicants also say they have found email correspondence on their father’s computer indicating that he had intended to prepare his own will, namely an undated email responding to an email dated 26 October 2012 from a law firm and headed “Your Will and Powers of Attorney”. In his reply, the Deceased advised that he no longer required the law firm’s services as he had found a friend who was a lawyer and who was prepared to do it for him.
The Wills Act 2007
[9] Section 8(1) of the Wills Act 2007 sets out the meaning of a will. That meaning includes a document made by a natural person which disposes of property to which the person is entitled when he or she dies.
[10] Section 11 of the Wills Act sets out the requirements for a will to be valid. These include that the document was signed by the will-maker and witnessed in the manner required by that section.
[11] Section 14 provides that the High Court may declare to be valid a document that does not comply with s 11 if the document appears to be a will and was made in or out of New Zealand and the Court is satisfied the document expresses the deceased person’s testamentary intentions. Section 14(3) provides that for that purpose, the Court may consider the document, evidence on the signing and witnessing of the document, evidence on the deceased person’s testamentary intentions, and evidence of statements made by the deceased person. However, as stated by McKenzie J in
Re Campbell (Deceased), the Court may take into account any evidence that may assist in determining the deceased person’s testamentary intentions.1
Analysis
[12] I consider the document comes within the meaning of a will in s 8. I am, satisfied it was made by a natural person. It disposes of property to which the Deceased was entitled when he died.
[13] For the purposes of s 14, the document appears to be a will. I am satisfied from the affidavits sworn by the applicants and by Mr Dornauf and Mr Jones that it was made in New Zealand.
[14] I am also satisfied by the affidavits sworn by the applicants and by Mr Dornauf and Mr Jones that the document expresses the deceased’s testamentary intentions:
(a)It is headed “THIS IS THE LAST WILL AND TESTAMENT of me KENNETH PETER COOMBS of Hamilton, New Zealand;
(b)It states that it revokes all former testamentary dispositions;
(c)It states that it appoints the Deceased’s son and daughter, the applicants, to be executors of the Deceased’s will;
(d)It records the Deceased’s wish to be cremated;
(e)It states that the Deceased gives to his Executors all his real and personal property in trust to pay the Deceased’s debts, funeral and testamentary expenses and other duties and expenses payable by the Deceased’s estate;
(f)It states that the Deceased gives the remainder of his estate to his son and daughter in equal shares;
1 Re Campbell (Deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15].
(g)It has a place for signature by the Deceased as testator;
(h)It was signed by two friends of the Deceased who say they were asked by the Deceased to witness his will and who signed the document for that purpose.
[15] Therefore, in accordance with s 14(2) of the Wills Act 2007, I am satisfied the document expresses the Deceased’s testamentary intentions.
Order
[16]I make the following order:
I declare that the undated document, a copy of which is exhibited to the affidavit of Russell Peter Coombs and Sharon Anne Martin sworn on 26 November 2018 and filed in support of the application, is a valid will of Kenneth Peter Coombs who died in Hamilton on 14 May 2018.
G J van Bohemen J
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