Estate of Crowle

[2023] NZHC 1775

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-349

[2023] NZHC 1775

IN THE MATTER OF

Section 14 of the Wills Act 2007 and the Estate of PETER LESLIE CROWLE

BETWEEN

IAN FREDERICK CROWLE of Cromwell, Electrician, as the intended Executor of the Estate of the late Peter Leslie Crowle, deceased

Applicant

Hearing:	On the Papers
Appearances:	K Lenahan for Applicant
Judgment:	7 July 2023

JUDGMENT OF CULL J

[1]    Mr Crowle, the deceased’s brother (the applicant) makes an application for a grant of Letters of Administration of the Will dated 3 July 2019 (the 2019 Will) of the deceased. Alternatively, he seeks an order under s 14 of the wills Act 2007 validating the deceased’s unsigned 2022 draft Will (the draft Will) and an order granting the applicant probate of the draft Will.

[2]    This application is not contested, as the only affected parties are the deceased’s adult daughter, his brother, the applicant, and nephew. Independently, they have entered a Deed of Family Arrangement, which the applicant has provided to the Court by way of affidavit. They agreed that he would apply for the above orders and that the deceased’s estate would be distributed in accordance with the Deed of Family

Est of Crowle [2023] NZHC 1775 [7 July 2023]

Arrangement, irrespective of the administrator or executor appointed and irrespective of which Will a grant is made.

[3]    In addition, interlocutory applications seek leave that both applications be brought as originating applications, for the proceeding to be conducted through the Wellington Court Registry and for service to be dispensed with on the basis that all affected parties have entered a deed of family arrangement agreeing on the resolution of this application and the distribution of the deceased’s estate.

[4]I deal first with the procedure for the applications.

Procedure

[5]    An application for a grant of Letters of Administration is normally brought under Part 27 of the High Court Rules 2016. For reasons which I address below, I decline to make the order granting the applicant Letters of Administration and similarly, leave is declined to commence that application by way of originating application.

[6]    However, I do grant leave to bring the application to validate the Will under  s 14 of the Wills Act 2007 as an originating application and for the application to be dealt with in the Wellington High Court Registry, as it is the National Probate Registry.

Background

[7]    In the 2019 Will, the deceased appointed two partners in a law firm as executors, left various chattels and memorabilia to his daughter, a chattel to his nephew and the remainder of his estate, including the residue to his de facto partner and her son respectively.

[8]    Since making that Will, the deceased and his de facto partner separated in 2020 and both the de facto partner and her son died in 2021 before the deceased, so the bequests to them were of no effect.

[9]    The only beneficiaries under the 2019 Will are the deceased’s daughter and nephew who are also beneficiaries under the 2022 draft Will and are parties to the deed of family arrangement. The applicant was neither an applicant nor beneficiary under the 2019 will.

[10]   Under the 2022 draft Will the deceased gifts his nephew different chattels from those specified in the 2019 Will, the remainder of his chattels are gifted to his daughter, and the applicant receives the deceased’s boat.

[11]   I take the view that by 2022, the 2019 Will had been overtaken by the separation and the deaths of the deceased’s de facto partner and her son and therefore needed to be updated. That is what the deceased clearly intended by giving his instructions to a firm of solicitors, who drew up a Will and forwarded it to the deceased. His instructions to the solicitors are recorded in writing by way of answers to a preliminary questionnaire for the preparation of his Will. As the applicant deposes, it is apparent that the deceased confirmed the 2022 draft Will was in order, provided that the applicant’s wife was named as a substitute executor in it, which it does. There are relevant emails between the deceased and the solicitors, confirming the deceased’s belief that he had given instructions that the 2022 draft Will was ready for signing by way of an email dated 14 October 2021 but missed an appointment to sign it.

[12]   The deceased referred to having signed the 2022 draft Will himself in an email to his solicitor and said he wanted to return it to his solicitor but he died before the 2022 draft Will was executed. Despite the deceased’s email advice, the applicant cannot find a copy of the 2022 draft Will signed by the deceased.

[13]   Despite the unsigned draft Will and the absence of the required two witnesses, I am satisfied that the draft unsigned 2022 Will should be validated, as it reflects and expresses the deceased’s testamentary intention in updating his previous Will.

[14]   I note that the only difference between the provisions of the 2022 draft Will and the provisions of the 2019 Will are that the deceased’s nephew receives different chattels under the Wills and the applicant receives a boat under the draft 2022 Will.

The effect of the changes to the beneficiaries under the 2019 Will are minimal. In any event, they have reached an agreement as to the distribution of the decease’s estate, which reflects the terms of the 2022 draft Will, in the Deed of Family Arrangement.

[15]   Although the applicant seeks that probate be granted if the draft Will is validated a grant of probate must be processed in the normal way. The Probate Registry will address the issue of the grant of probate of the validated Will.

[16]Accordingly, I make the following orders:

(a)Leave is granted for this application to be commenced by originating application, through the Wellington High Court Registry, and that service of the application may be dispensed with.

(b)The unsigned and undated document, being the draft 2022 Will, a copy of which is annexed to the affidavit of the applicant, be declared valid as the last Will of the deceased.

Cull J

Solicitors:

Greg Kelly Law Limited, Wellington, for Applicant