Estate of Fraser - [2020] NZHC 2448

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-000012

[2020] NZHC 2448

IN THE ESTATE OF PETER MARK FRASER (Deceased)

AND

DONNAMARIE DICKENS

Applicant

SHARON ANN FRASER (NEE ROBINSON)
Respondent/First Party Directed To Be Served

HOLLY-ANN FRASER
Second Party Directed To Be Served

STACEY ALANYA FRASER

Third Party Directed To Be Served

Hearing: 17 September 2020

Appearances:

C A O’Connor for Applicant

First Party Directed to be Served – Self Represented Second Party Directed to be Served – No Appearance Third Party Directed to be Served - No Appearance

Judgment:

18 September 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 18 September 2020 at 2:15 p.m. pursuant to Rule
11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE ESTATE FRASER [2020] NZHC 2448 [18 September 2020]

Introduction

[1] The applicant Donnamarie Dickens (Ms Dickens) seeks a declaration pursuant to s 14 of the Wills Act 2007 (the Act) declaring a document to be the valid will of the deceased Peter Mark Fraser (Mr Fraser) who she describes as her brother.

[2]Mr Fraser died at Timaru on 25 March 2019.

[3] The document in question (the July 2018 document) is handwritten and purports to be a will. It appears to be in the handwriting of Mr Fraser, it comprises three pages and at the head of the pages are the words “Will 19/7/2018” in the case of pages 1 and 2, and “Will” in the case of page 3.

[4] It has been signed by Mr Fraser alongside the date “19/7/2018” and it is witnessed but only by one person. This witness has described herself in the document as “Robyn Lee Parry” of 43 Abbott Street, Pareora”, (Ms Parry). She has signed with her name. There is no other witness to the document.

[5] The July 2108 document begins on page 1 with the words “this is the will of Pete Mark Fraser” and then it goes on to describe and to dispose of named assets.

[6] Previously, Mr Fraser, who was at the time married to the respondent, Sharon Ann Fraser (Robinson) (the respondent) on 13 March 2004 had signed an earlier will with the Public Trust Office. This appointed the Public Trustee as his executor and effectively transferred all his estate to the respondent as his then wife (the respondent).

[7] Subsequently, Mr Fraser and the respondent separated. Then, on 16 April 2018, they were the subject of consent orders under the Property (Relationships) Act 1976 made in the Family Court at Timaru dividing their relationship property between them. As I understand the position, Mr Fraser and the respondent had two children of their relationship, Holly-Ann Fraser and Stacey Alanya Fraser. Both of these children, as I understand it, are over age 20. They have each filed in this Court forms consenting to the order sought by Ms Dickens to declare the 19 July 2018 document, the valid will of their late father, Mr…

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: [2020] NZHC 2448
Decision Date: 18 September 2020

CaseChat Overview and Summary

The case involves an application by Donnamarie Dickens, who claims to be the deceased Peter Mark Fraser's sister, seeking a declaration under section 14 of the Wills Act 2007 that a handwritten document dated July 2018 is the valid will of Mr. Fraser. The respondent, Sharon Ann Fraser (nee Robinson), who was Mr. Fraser's wife at the time of his death, opposes the application. The court was required to decide whether the July 2018 document was indeed the valid will of Mr. Fraser and if it expressed his testamentary intentions. The court considered the requirements of section 14 of the Wills Act 2007, which allows the High Court to declare a document as a valid will if it is satisfied that the document expresses the deceased person's testamentary intentions. The court found that the July 2018 document appeared to be a will and did not comply with the requirements of section 11 of the Act. The court was satisfied that Mr. Fraser intended the July 2018 document to be his will, as it was handwritten by him, signed by him, and witnessed by one person, although not in compliance with the statutory requirements. The court concluded that the July 2018 document reflects Mr. Fraser's testamentary intentions and declared it to be the valid last will of Mr. Fraser, revoking his previous will made on 13 March 2004.

The court's decision was based on the evidence presented by the applicant, Ms. Parry, who witnessed the signing of the July 2018 document and provided evidence of Mr. Fraser's intentions in creating the will. The court found that the respondent had not presented any exceptional reasons for the court not to give effect to Mr. Fraser's clear wishes. The court also noted that matters relating to the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949, which were raised by the respondent, were not relevant to the Wills Act 2007 application before the court. The court declared the July 2018 document as the valid last will of Mr. Fraser and encouraged the parties to amicably resolve any remaining issues.

Orders