Estate of Fowler

[2014] NZHC 371

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-2008 [2014] NZHC 371

IN THE ESTATE OF         FRANK JOSEPH FOWLER Applicant

Hearing:                   On the papers Appearances:       R I Gordon for applicant Judgment:          5 March 2014

JUDGMENT OF LANG J

[on application for order declaring document to be a valid will]

This judgment was delivered by me on 5 March 2014 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

In the estate of FRANK JOSEPH FOWLER [2014] NZHC 371 [5 March 2014]

[1]      In this proceeding the Court is asked to make an order under s 14 of the Wills Act 2007 declaring a handwritten document dated 23 May 2013 to be the valid will of Frank Joseph Fowler.  Mr Fowler died at Stratford on or about 17 October 2013.

Background

[2]      Mr Fowler’s last formal will was dated 21 March 2001.  On or about 23 May

2013, however, Mr Fowler provided his solicitor, Mr Roderick Ian Gordon, with a handwritten document containing his instructions for the preparation of a new will. Mr Fowler wrote a note on the document asking Mr Gordon to make him a new will in accordance with the provisions contained in that document.

[3]      Mr Gordon visited Mr Fowler on 7 June 2013, and discussed the handwritten document with him.   Mr Fowler subsequently called at Mr Gordon’s office on 31

July 2013 to check whether Mr Gordon had prepared the new will.  At that stage, however, Mr Gordon had not had an opportunity to prepare the new will.   Mr Gordon then arranged appointments for Mr Fowler to attend his office to sign the new will on two occasions in August and early September 2013.  On both occasions, however, Mr Fowler contacted Mr Gordon’s office to advise that he was unable to come in to sign the will because he was unwell.  On each occasion he said he would contact Mr Gordon to make another appointment when he was feeling better.

[4]      Unfortunately,   Mr   Fowler’s   health   prevented   him   from   making   an appointment to sign the new will before he died on 17 October 2013.  The Court is now asked to declare the handwritten document dated 23 May 2013 valid as Mr Fowler’s last will.

Jurisdiction

[5]      Section  14  of  the Act  permits  this  Court  to  make  an  order  declaring  a document to be a valid will if it is satisfied that the document expresses the testamentary intentions of the deceased.  In deciding whether to make such an order the Court may consider the wording of the document, evidence as to the manner in which the document was signed and witnessed, evidence as to the testamentary

intentions of the deceased and evidence of any statements that the deceased may have made relevant to the issue.1

Decision

[6]      The handwritten document dated 23 May 2013 cannot meet the requirements of a will under the Act, because it is not signed and witnessed in accordance with the requirements of the Act.2    That is not surprising, because Mr Fowler obviously did not intend the handwritten document to be his last will.  Rather, he intended it to be a blueprint for Mr Gordon to use when preparing a new will that Mr Fowler would then sign in accordance with the requirements of the Act.

[7]      Nevertheless, the document resembles a will in virtually every respect.   It begins with the following words:

I revoke all former wills and testamentary dispositions at whatsoever time heretofore made by me.

1.THIS IS THE LAST WILL AND TESTAMENT OF ME FRANK JOSEPH FOWLER of Stratford a Retired Farmer.

2.I APPOINT AARON WAYNE BELLAMY of Stratford Dairy Farmer and  ROB  GORDON  of  Stratford  Solicitor  to  be  Executors  and Trustees of this my will

[8]      The balance of the document is couched in terms similar to those used in a testamentary disposition.   Mr Fowler clearly prepared the document using his previous will as a template, because he numbered paragraphs in the handwritten document with the same numbers used in the previous will when dealing with the same topics.   Mr Fowler also referred on several occasions in the handwritten document to the fact that certain provisions of his old will no longer applied.

[9]      Mr  Gordon  has  confirmed  in  a  supplementary  affidavit  that  when  he discussed the handwritten document with Mr Fowler on 7 June 2013, Mr Fowler did not wish to alter any of the provisions referred to in that document.  I am therefore satisfied that the document accurately records Mr Fowler’s testamentary intentions

as at the date of his death.

1      Wills Act 2007, s 14(3).

2      s 11(2), (3) and (4).

[10]     The principal persons affected by the will are the proposed executors, Mr Aaron Bellamy and Mr Gordon, as well as Mr Fowler’s friend Janice May Bellamy and  Mr  Fowler’s  brother  John  Martin  Fowler.    Mr  Bellamy  and  Mr  Gordon obviously support the present application, because they have filed it.  Ms Janice May Bellamy has also given her written consent to the making of the orders sought in the application.

[11]     The  brother  of  the  deceased,  Mr  John  Fowler,  has  not  signed  a  similar consent.   Mr Gordon deposes that this is because Mr Fowler suffers from certain disabilities.   In addition, the provisions that affect Mr Fowler in the handwritten document effectively mirror those contained in Mr Fowler’s previous will.   These factors persuade me that Mr John Fowler is not prejudicially affected by the making of the orders sought, and it is not necessary to serve the application on him.

Result: order

[12]     I make an order under s 14(2) of the Wills Act 2007 declaring the handwritten document dated 23 May 2013 to be the valid will of Frank Joseph Fowler.

Lang J

Solicitors:

R I Gordon, Stratford