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 as a young child was adopted to another family.  In the event that the unsigned will is not declared valid the entire estate will pass to the siblings in accordance with the rules of intestacy.

[7]      The only identified potential beneficiaries of the estate are Ms Blakeley and Mr Ford’s siblings.  As a result of their direct interest in the outcome of this proceeding, orders were made directing they be formally served with a copy of the application.  This step has been attended to.  Mr Ford’s sisters and brother and his daughter, Ms Blakeley, have all confirmed in writing their consent to an order being made declaring the unsigned will to be valid.  In their memorandum of consent each

attests to having been advised to take independent legal advice and a copy of the unsigned will is attached to their consent memorandum.

[8]      In making orders for directions, Nation J requested counsel for the applicant to consider whether any issue arose which the Court should consider because the unsigned will refers to Ms Blakeley as Mr Ford’s daughter notwithstanding her having been adopted out as a young child.   That aspect has been addressed by counsel for the applicant in a memorandum filed in response.

[9]      I accept that no difficulty arises from the description of Ms Blakeley as Mr Ford’s  daughter  in  the  will.    Ms  Blakeley  is  named  in  full  as  a  residuary beneficiary of the will and it is apparent that his description of her as his daughter reflects the manner in which Mr Ford viewed his relationship with Ms Blakeley.

[10]     A document that does not comply with the requirements for executing a will may be validated by the Court if it is satisfied that  it expresses the deceased’s testamentary intentions.  Section 14 of the Wills Act 2007 (the Act) provides:

14       High Court may declare will valid

(1)      This section applies to a document that—

(a)      appears to be a will; and

(b)      does not comply with section 11; and

(c)      came into existence in or out of New Zealand.

(2)       The High Court may make an order declaring the document valid, if it is satisfied that the document  expresses the  deceased person’s testamentary intentions.

(3)      The court may consider—

(a)      the document; and

(b)      evidence on the signing and witnessing of the document; and

(c)      evidence on the deceased person’s testamentary intentions;

and

(d)      evidence of statements made by the deceased person.

[11]     While Mr Ford’s will was made in writing, he did not, in accordance with

s 11, sign the document, nor, obviously, was the making of the will witnessed.

[12]     In Re Estate of Beaumont, MacKenzie J emphasised the need for care in assessing whether a document genuinely expresses a will maker’s wishes and described the application of the test set out in s 14(2) in the following terms:2

[11]      A fundamental principle underpinning the law governing wills is that great care must be taken in determining whether what is claimed to be an expression of a will-maker's wishes is genuinely so. That care is necessary because a will operates only after its maker has died.  The requirements as to the formalities of execution of a will are a consequence of this fundamental principle. Under s 14(2), the inquiry which that principle requires is focussed on the will-maker's intentions, rather than on the formal steps taken to implement those intentions. That change of focus does not diminish the importance of the fundamental principle. In considering the s 14(2) question, great care must be taken in determining whether the draft will is genuinely an expression of the deceased's intention.

[12]     Under  s  14(2),  the  Court  must  be  satisfied  that  the  document expresses  the  deceased  person's  testamentary  intentions.  The  use  of  the phrase “is satisfied” is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding an adverbial qualification.  In reaching a conclusion as to whether it is satisfied under s 14(2), the Court must have regard to evidence, as s 14(3) makes clear. The standard of proof to be applied in considering that evidence is the civil standard, the balance of probabilities...

[13]      In the case of validation of a will, a finding that the Court is satisfied will  result  in  a  final  distribution  of  the  estate  in  accordance  with  the document under consideration. The rights and interests of those who would inherit if the document is not validated will be affected.   The potential consequences of the order, and the importance of the fundamental principle to which I have referred, indicate the seriousness of the matters to be proved and the consequences of proving them.

[13]     Having read the material in support of the application, including counsel’s memoranda, the affidavits filed in support and the consent memoranda of the identified  affected  parties,  I  am  satisfied  the  unsigned  document  does  attest  to Mr Ford’s testamentary intentions.   In particular, I am satisfied the document was prepared by Mr Williams on the instructions of Mr Ford and that its content reflects his intentions.  Both Mr Williams and Ms Anderton have confirmed in their evidence

that  Mr  Ford  received  and  reviewed  a  copy  of  the  unsigned  will  and  that  he

2      Re  Estate of  Beaumont [2013] NZHC 2719. This approach was subsequently applied by

Courtney J in Balchin v Hall [2016] NZHC 837 at [6].

confirmed to both of them that he was content with its terms.   A relatively short period of time, between September and December 2015, elapsed between the unsigned will’s preparation and Mr Ford’s death.   There is no indication Mr Ford wished to change the terms of his will during that period, nor that the delay in signing the document was other than as a result of waiting for a convenient time for Mr Ford to attend at Mr Williams’ office.

[14]    Being satisfied that the unsigned will expresses Mr Ford’s testamentary intentions at the date of his death, I declare, pursuant to s 14 of the Wills Act, the unsigned document to be the valid will of John Wayne Ford and there will be an order to that effect accordingly.

[15]     No order in respect of costs arises.

Solicitors:

Cavell Leitch, Christchurch