Estate of Fidler

[2024] NZHC 1727

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-320

[2024] NZHC 1727

IN THE MATTER

of the Estate of ETHEL MARGARET FIDLER

BETWEEN

LAWRENCE ANTHONY HEATH

Applicant

Judgment

(on the papers):

27 June 2024

JUDGMENT OF ROBINSON J

Application for order declaring a will to be valid]

Solicitors:
Atkinson Crehan Law, Richmond

ESTATE OF ETHEL MARGARET FIDLER [2024] NZHC 1727 [27 June 2024]

Background

[1]                 The applicant, Lawrence Anthony Heath, is a cousin of the deceased, Ms Ethel Margaret Fidler. Ms Fidler died in Motueka on 23 May 2022.

[2]                 Mr Heath applies without notice for an order under s 14 of the Wills Act 2007 (the Act) declaring an undated and unsigned document (the Document) purporting to be the will of the deceased as valid.

The facts

[3]                 The Document was drafted by  the  deceased’s  solicitor,  Mr  Max  Palzer. Mr Palzer had prepared the Document after speaking to the deceased about her wishes. The Document:

(a)was titled “The Will of Ether Margaret Fidler”;

(b)was unsigned by the deceased;

(c)nominates Mr Heath as the executor; and

(d)leave instructions for the distribution of the deceased’s property.

[4]                 In his memorandum (and as affirmed by an affidavit from Mr Heath), Mr Palzer explains that he visited the deceased on 13 June 2022, where the deceased communicated that she wanted a will prepared on the basis that the residue of her estate should not pass into the hands of her sister’s husband’s family. At a second meeting on 18 June 2022, Mr Palzer brought the deceased a draft will in the form of the Document. Mr Palzer says the deceased confirmed the contents of the Document as a draft will, in particular that she wanted the remnants of her estate to pass to her nieces and nephews and that Mr Heath should be appointed executor. Unfortunately, she died five days later on 23 June 2022, before she could sign the Document.

[5]                 The Document states that the balance of the deceased’s estate is to pass to six identified nieces and nephews in equal share. All six have provided signed statements consenting to the making of an order validating the Document. All six have also

confirmed in their statements that they have elected not to seek independent legal advice in respect of this matter.

[6]                 There is also a signed statement from the deceased’s sister consenting to the order being made and advising of her election not to seek independent legal advice.

[7]                 Mr Heath’s affidavit confirms that he undertook a search for an earlier will but failed to locate one. It also confirms that the sole person with a beneficial interest in the deceased’s estate is Ms Fifeld, the deceased’s sister. The affidavit records the inquiries made by Mr Heath as to the existence of any surviving children or parents of the deceased for the purposes of the Status of Children Act 1969. No such parent or child was discovered. Finally, there is an email from the Ministry of Internal Affairs confirming that a search of indexes kept in the Registrar-General’s Office was made and no paternity orders or declarations of paternity were discovered in respect of the deceased.

Should the Court make an order?

[8]                 Section 14 of the Act provides that the High Court may make an order declaring a document to be a valid will if it is satisfied that the document expresses the deceased person’s testamentary intentions.1 Such orders can be made in respect of documents that appear to be a will but do not comply with s 11.2 In determining whether or not to make such an order, the Court may consider: the document; evidence concerning the signing and witnessing of a document and the deceased person’s testamentary intentions; and evidence of statements made by the deceased.3

[9]                 Section 11 of the Act sets out the requirements of a valid will. The Document falls short of those requirements in that it was neither signed by the deceased (or signed by someone directed by the deceased to do so on her behalf), nor witnessed by at least two witnesses.

1      Wills Act 2007, s 14(2).

2      Wills Act, s 14(1).

3      Wills Act, s 14(3).

[10]              Nevertheless, I am satisfied on the balance of probabilities that the Document reflects the deceased’s testamentary intentions. The estate is a modest one. All six beneficiaries of the deceased’s residual estate consent to the order. Importantly, the deceased’s sister, who has a beneficial interest in the estate, but would benefit from the deceased’s intestacy, also consents to the order being made. On the evidence before me, no previous will appears to have been executed and there are no surviving parents or children of the deceased. It appears that the reason the Document was never signed was because the deceased died just five days after she confirmed her testamentary intentions to her solicitor.

[11]              I therefore make an order declaring that the Document that is the subject of this proceeding is a valid will of Ethel Margaret Fidler.

Robinson J