Estate of Ford - [2017] NZHC 2356

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-277 [2017] NZHC 2356

UNDER the Wills Act 2007

IN THE MATTER OF

the Estate of John Wayne Ford

AND

KERRY NOBLE WILLIAMS AS EXECUTOR AND TRUSTEE OF THE ESTATE OF JOHN WAYNE FORD Applicant

Hearing:
27 September 2017

(On the papers)

Counsel:

A L Worrill for Applicant

Judgment:

27 September 2017

JUDGMENT OF MANDER J

[1] The applicant, Mr Kerry Williams, in his capacity as the executor and trustee of the estate of the late John Wayne Ford has made application for an order declaring Mr Ford’s will to be valid.1

[2] A will was prepared by Mr Williams on Mr Ford’s instructions, however, he passed away before being able to sign it. The unsigned will names Mr Williams as the sole executor and trustee of Mr Ford’s estate which is estimated to have a gross value of more than $155,000. Mr Williams brings these proceedings in that capacity.

[3] Ms Tania Anderton, a legal executive employed by Mr Williams’ firm has

sworn an affidavit in support of the application. She deposes that in September 2015

1 Wills Act 2007, s 14.

RE ESTATE OF FORD [2017] NZHC 2356 [27 September 2017]

she was the legal executive looking after Mr Ford’s purchase of a property. At this time Mr Ford gave instructions to Mr Williams to prepare a will and powers of attorney. These were prepared and Mr Ford was asked to come into the office to sign the documents. Ms Anderton recalls being asked by Mr Williams to follow up with Mr Ford regarding a time to sign the will and of her contacting Mr Ford over the course of successive months, in October, November and December 2015.

[4] Ms Anderton deposes of having spoken with Mr Ford on a number of occasions, confirming the content of the will as drafted was for everything in his estate to go to his daughter, Louisa Mary Blakeley (Ms Blakeley), apart from a bequest of $5,000 to his sister, Christine Ford. Ms Anderton noted that the recent purchase of the property was with the intention of passing it to Ms Blakeley. Ms Anderton deposed that she can recall Mr Ford advising that he would come into the office when he was on that side of town to sign the will. Mr Ford died on or about 21 December 2015 without executing his will.

[5] These circumstances are confirmed by the applicant himself, Mr Williams, who in his own affidavit deposed that Mr Ford was happy with the content of the will, and that at no time during any subsequent discussions he had with Mr Ford did he revoke his instructions regarding the will. The deceased has no prior valid will.

[6] Mr Ford is survived by his daughter, Louisa Mary Blakeley, and his siblings, Ms Ford, another sister, Debra McKenzie, and a brother, David Ford. A potential difficulty that arises is that Ms Blakeley…

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: [2017] NZHC 2356
Decision Date: 27 September 2017

CaseChat Overview and Summary

In the Estate of Ford, Kerry Noble Williams applied for a declaration that an unsigned will, prepared in accordance with John Wayne Ford’s instructions, be deemed valid under the Wills Act 2007. Mr Ford passed away before signing the will, which named Mr Williams as the sole executor and trustee of his estate, valued at over $155,000. Tania Anderton, a legal executive who assisted in preparing the will, provided an affidavit confirming Mr Ford’s intentions and satisfaction with the will's terms. Mr Ford’s daughter, Louisa Mary Blakeley, and his siblings, Christine Ford, Debra McKenzie, and David Ford, all consented to the will being declared valid. The court had to determine whether the unsigned document genuinely expressed Mr Ford’s testamentary intentions.

The court considered the evidence, including the affidavits and consent memoranda, and concluded that the unsigned will did reflect Mr Ford’s intentions. The will was prepared by Mr Williams on Mr Ford’s instructions, and Mr Ford reviewed and confirmed the terms. The delay in signing the will was due to scheduling a convenient time for Mr Ford to attend the office, with no indication that Mr Ford wished to change the will's terms in the interim. The court was satisfied that the unsigned will expressed Mr Ford’s testamentary intentions at the time of his death.

The court declared the unsigned document to be the valid will of John Wayne Ford under section 14 of the Wills Act 2007. No order regarding costs was made.

Orders