Estate of Froggatt

[2015] NZHC 1840

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000183 [2015] NZHC 1840

IN THE MATTER

of an application pursuant to s 14 of the

Wills Act 2007

AND

IN THE MATTER

of the Estate of the late JOAN MAY FROGGATT

DAVID GORDON JAMES FROGGATT AND JUDITH CAROLE NAHKIES Applicants

Hearing:	5 August 2015 (On the papers)
Appearances:	J M Moran for Applicants
Judgment:	5 August 2015

JUDGMENT OF DUNNINGHAM J

[1]      This is an application to have a document which was prepared as the will of the late Joan May Froggatt (the deceased), declared a valid will, pursuant to s 14 of the Wills Act 2007.  The application is brought by the deceased’s surviving spouse, David Gordon James Froggatt (Mr Froggatt), and her daughter.

[2]      The circumstances giving rise to the application are that the deceased died at

Rolleston on 24 November 2014 after a brief illness.

[3]      Prior to falling ill, the deceased and Mr Froggatt met with their lawyer in May 2014 to discuss their testamentary wishes and to arrange for enduring powers of attorney to be prepared.  Both the deceased and her husband had made previous wills

with their lawyer in 2012. Those wills were “mirror wills”, providing for life interest

ESTATE OF JOAN MAY FROGGATT [2015] NZHC 1840 [5 August 2015]

to each other, money legacies in favour of their nine grandchildren and then dividing the residuary estate equally between their three children.  They decided to vary the

2012 wills by leaving the one-third share of their respective residuary estates that was to pass to their daughter, Debra Anne Lyell, to her three children.  At this stage, Debra had been diagnosed as suffering from dementia and it was considered that any provision for Debra would be of little advantage to her financially.

[4]      Once the wills had been prepared, Mr Froggatt’s affidavit evidence is that, although the wills were drafted  as intended, unfortunately they each  signed the wrong will.   In other words, the deceased signed the will of her husband and she signed his, leading to the need for the current application.

Service of the application

[5]      On 13 April 2015, I made directions requiring:

(a)       counsel   to   be   appointed   to   represent   the   deceased’s   daughter

Debra Anne Lyell; and

(b)      the    proceeding    to    be    served    on    the    three    daughters    of

Debra Anne Lyell.

[6]     Counsel was appointed in accordance with directions and provided a memorandum to the Court confirming that:

(a)      Debra suffers from an advanced Alzheimer’s condition and is unable to make decisions affecting her financial, personal and other welfare interests;

(b)while currently the costs of her care are met by the Ministry of Health, in 10 years time when she is 65 years old, Debra’s residential care costs will be subject to means testing;

(c)      under the document sought to be validated as a will, Debra would not be a beneficiary and consideration needs to be given to whether she would have a claim under the Family Protection Act 1955;

(d)having considered her circumstances, including that her needs are adequately met at present, there is no benefit in pursuing a claim under the Family Protection Act against her late mother’s estate.

[7]      I  directed  that  any  opposition  to  the  application  was  to  be  filed  within

20 working days of the date of service.  No opposition has been filed.

Application of the Wills Act 2007

[8]      Section 14 of the Wills 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.

[9]      It is clear from the evidence that there is a document in existence which “appears to be a will” as it does one or more of the things described in s 8 of the Act which define a document as a will, in that it disposes of property of the deceased when she dies.

[10]     It was also clear that the document in question did not comply with s 11 of the Act which provides, relevantly:

11 Requirements for validity of wills

…

(3)      The will-maker must—

(a)      sign the document; or

(b)      direct another person to sign the document on his or her behalf in his or her presence.]

(4)      At least 2 witnesses must—

(a)      be  together  in  the  will-maker's  presence  when  the  will- maker—

(i)       complies with subsection (3); or

(ii)      acknowledges that—

(A)      he or she signed the document earlier and that the signature on the document is his or her own; or

(B)      another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)      each sign the document in the will-maker's presence.

…

[11]     The non-compliance is, of course, that it was not the deceased who signed the documents but her husband, Mr Froggatt.

[12]     Where there is a document that appears to be a will but does not comply with the requirements of s 11, then the Court may exercise the power to validate it if it is satisfied   that   “the   document   expresses   the   deceased   person’s   testamentary intentions”.  I accept that the evidence of the applicants is clear on this point.  The deceased and her husband had arranged to prepare updated wills which mirrored one and other, and which were intended to address the concern that any bequest in favour of their daughter Debra would have little or no benefit to her given her lack of capacity and that she is in fulltime dementia care.

[13]     Accordingly, I am satisfied that the document represents the deceased’s last wishes with regard to the administration of her estate and the circumstances are appropriate for making an order under s 14 of the Wills Act declaring the document a valid will.

[14]     Accordingly, I order that the unsigned will of the late Joan May Froggatt, of Rolleston,    a    copy    of    which    is    attachment    A    to    the    affidavit    of David Gordon James Froggatt sworn on 23 March 2015, is valid pursuant to s 14 of the Wills Act 2007.

Dunningham J

Solicitors:

Meares Williams, Christchurch