Estate of Drury

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002655

[2018] NZHC 230

UNDER

Sections 14 and 16 of the Wills Act 2007

IN THE ESTATE

of PETER JOHN ROBERT DRURY

AND

DENISE PATRICIA O’REILLY

Applicant

Hearing:	5 February 2018
Counsel:	J Strauss for Applicant
Judgment:	23 February 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 23 February 2018 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

North Harbour Law, Orewa. J Strauss, Auckland.

ESTATE OF DRURY [2018] NZHC 230 [23 February 2018]

The issue

[1]    Mr   Peter   Drury,  or   Peter,   died   on   28   July   2017.   His   daughter, Ms Denise O’Reilly, seeks an order a document is Peter’s last will. The application, which is governed by the Wills Act 2007, is supported by Mr Stephen Drury, Peter’s son. A not unimportant question arises: is a digital document a “document”—and hence a will—under the Act?

Background

[2]The facts are uncontested.

[3]    Mr Tony Edwards has been Peter’s solicitor for at least 25  years.  In 1992  Mr Edwards prepared a will for Peter. All of Peter’s estate went to his wife if she survived him. But if she did not, his property was to be split equally between: a) the SPCA; and b) Denise and Stephen. The original of this will has been lost or destroyed, but nothing turns on this.

[4]    In 2007 Peter instructed Mr Edwards to draft a new will. Peter’s estate was to be divided equally between his two children. By then, Peter’s wife had died. It follows no provision was made for the SPCA. It remains unclear if this will was executed.

[5]    In 2011 Peter contacted Mr Edwards again with instructions to prepare a new will. This iteration divided Peter’s estate into three equal parts: one to Denise, one to Stephen, with the final part to be shared between Stephen’s two children. The will was not executed because Peter again changed his mind; he then wished to provide for all grandchildren.

[6]    When Peter died, his son and daughter remembered he had told them he had prepared a “final request” document on his computer. They found it there. Materially, Peter was the only person to use the computer (at his home). An expert has examined the computer.  The document was created on 20  February 2016 and last  edited on   5 April 2016. Peter was home between these dates.

[7]    As its name implies, the “final request” document sets out Peter’s wishes in relation to funeral arrangements. The document also contains Peter’s intentions in relation to his estate:

I wish the property to be sold and the money raised to be split as follows 40% to Denise Patricia O’Reilly, 40% to Stephen John Robert Drury, and the remaining 20% put in trust for my grand-children, to be used for their education in later life. This will be their money, and for education purposes.

...

[8]    Peter’s…