Estate of Cross - [2015] NZHC 692

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000666 [2015] NZHC 692

UNDER Section 14 of the Wills Act 2007

IN THE MATTER

of an application for an order declaring a will valid and for obtaining grant of probate

IN THE ESTATE

of SHIRLEY BERTHA CROSS

Hearing: (On the papers)

Judgment:

15 April 2015

JUDGMENT OF VENNING J

This judgment was delivered by me on 15 April 2015 at 11.45 am, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Butelaw, Auckland
Copy to: S W M Piggin, Auckland

In the Estate of CROSS [2015] NZHC 692 [15 April 2015]

Introduction

[1] The applicant, Paula Christine Cross, seeks orders:

(a) declaring a document produced to the Court dated 7 July 2014 and executed by Shirley Bertha Cross (the deceased) on 6 July 2014, to be a valid will of the deceased;

(b) declaring that the dispositions in the will to the applicant and Sandra

Lesley Abel are valid and effective; and

(c) directing that probate in common form of the will of the deceased issue to the applicant.

Background

[2] The deceased died on 9 July 2014 aged 77. She was survived by her two daughters, the applicant and Sandra Abel. Although the deceased had two further children, Phillippa Channing and Janne Barbier, both were legally adopted out and pursuant to s 16(2)(b) of the Adoption Act 1955, ceased to be children of the deceased for legal purposes.

[3] The deceased was diagnosed with cancer and by June 2014 knew she was going to die. On the weekend of 5 and 6 July 2014 the deceased was at home. Both her daughters, their partners, and her former husband (from whom she was divorced) and his wife were visiting her. The deceased told the applicant what provisions she wanted in her will. She had not previously had a will. The applicant converted those wishes into a typed up version of a document with the intention that it be provided to the deceased’s solicitor to be incorporated into a formal will document. Although in its introductory remarks it appears in the form of a letter to the solicitor, importantly the operative provisions of the document are expressed in formal terms consistent with a will document. The document provides for the appointment of trustees and executors and the disposition of the deceased’s property.

[4] The document was read over by the deceased on 6 July 2014. After reading it the deceased wanted to make two additions or amendments to it. They were handwritten in by the applicant. The first provided “the Maori Land gifted to me by Uncle Kitch Hopa is to go to Mathew Cross”. That referred to an interest in Maori land, which she intended to leave to her grandson. The other was to clarify the second to last typed paragraph. The word “difference” was crossed out so that the sentence read “The rest of my estate is to be split evenly between my daughters…

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: [2015] NZHC 692
Decision Date: 15 April 2015

CaseChat Overview and Summary

Paula Christine Cross applied to the High Court of New Zealand for a declaration that the will of Shirley Bertha Cross, dated 7 July 2014 but executed on 6 July 2014, is valid. She also sought a grant of probate in common form in her favour. Shirley Bertha Cross had passed away on 9 July 2014, leaving behind two daughters, Paula and Sandra Abel. The will in question contained provisions for the appointment of executors and trustees and the disposition of the deceased's property. The document was executed in the presence of the applicant, Sandra, and the deceased's former husband and his wife. However, only the applicant and Sandra signed the will as witnesses.

The court had to determine whether the document complied with the statutory requirements for a valid will under the Wills Act 2007. The court considered the nature of the document, the circumstances in which it was executed, and the evidence provided by the witnesses. The court found that the document satisfied the requirements of section 8 of the Wills Act 2007, which defines a will, and section 11, which sets out the requirements for the validity of a will. The court also addressed the issue of section 13 of the Act, which provides that a disposition of property in a will is void if the disposition is to a witness. However, the court found that the requirement for at least two witnesses who are not described in the subsection can be satisfied in this case. Furthermore, the court found that all the persons who would benefit directly from the avoidance of the disposition consented in writing to the distribution of the property.

Based on the evidence before the court and the arguments presented by the parties, the court was satisfied that the document executed by Shirley Bertha Cross on 6 July 2014 was a valid will. The court found that the document met the requirements of sections 8 and 11 of the Wills Act 2007 and that the dispositions in the will were valid and effective. The court also found that the applicant was entitled to a grant of probate in common form as one of the executors named in the will. The court left it to counsel to file an appropriate form of order and probate.

In summary, the High Court of New Zealand granted the application for a declaration that the will of Shirley Bertha Cross, dated 7 July 2014 but executed on 6 July 2014, is valid and for a grant of probate in common form in favour of Paula Christine Cross. The court found that the document met the statutory requirements for a valid will and that the dispositions in the will were valid and effective. The court also found that Paula Christine Cross was entitled to a grant of probate in common form as one of the executors named in the will.

Orders