Estate of Garnett

[2023] NZHC 46

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-15

[2023] NZHC 46

IN THE MATTER OF

AND

THE WILLS ACT 2007, SECTION 14

IN THE MATTER OF

AN APPLICATION BY JOSHUA ARMSTRONG GARNETT FOR AN ORDER THAT A DOCUMENT BE DECLARED A VALID WILL OF THE DECEASED NELSON RICHARD GARNETT

Applicant

Hearing:	(Determined on the papers)
Counsel:	A M McCormick for Applicant
Judgment:	31 January 2023

JUDGMENT OF EATON J

Introduction

[1]    Nelson Richard Garnett (Nelson) met with his solicitor, Quentin de Hamel, of Brandts-Giesen McCormick lawyers, on 17 August 2022 and instructed Mr de Hamel to prepare a new will naming his only son, Joshua Armstrong Garnett (Joshua), as his executor and sole beneficiary. A further meeting  was  held  between  Nelson  and Mr de Hamel on 7 September 2022 and a draft will sent to Nelson on 16 September 2022.

[2]    Sadly, Nelson died overnight between 17 and 18 September 2022. As at the date of his death he had not signed the draft will.

RE ESTATE GARNETT [2023] NZHC 46 [31 January 2023]

The application

[3]    On 20 January 2023, Joshua filed a without notice originating application under s 14 of the Wills Act 2007 (the Act) seeking an order declaring the draft will to be valid. Affidavits supporting the application were filed by Joshua and Mr de Hamel.

Background

[4]    Mr de Hamel deposes that Nelson had been a client of Brandts-Giesen McCormick Lawyers for 14 years. Mr de Hamel saw Nelson at the firm’s offices on 17 August 2022 and took initial instructions for a new will. Mr de Hamel required further information following that appointment in order to complete a draft will and accordingly saw Nelson  again  on  7  September  2022.  Following  that  meeting, Mr de Hamel had sufficient information to prepare a final draft will which was emailed to Nelson on Friday 16 September 2022. Mr de Hamel’s notes taken at the initial appointment are consistent with the terms of the draft will. It is clear Nelson intended that his son, Joshua, be the executor and sole beneficiary but that if Joshua did not survive Nelson, then the Public Trust should be appointed as executor and Nelson’s estate divided into shares to be held on trust for a grandson and a nephew.

[5]    I am satisfied that the draft will prepared by Mr de Hamel reflects the instructions provided by Nelson over the course of the two meetings.

[6]    Joshua has deposed that  Nelson died in  between 17 September  2022 and   18 September 2022. I have sighted a certified copy of his death certificate. Joshua has deposed that he believes he is Nelson’s only child. He has searched through his father’s papers and has not discovered any other will or document that describes his father’s last wishes. Nelson’s death certificate records that his marriage to Joshua’s mother has been dissolved.

[7]    Joshua has deposed that he believes the draft will reflects Nelson’s testamentary intentions.

[8]I am satisfied no other person has an interest in Nelson’s estate.

Jurisdiction and principles

[9]The application is made under s 14 of the Act:

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.

[10]Section 11 provides:

11       Requirements for validity of wills

(1)A will must be in writing.

(2)A will must be signed and witnessed as described in subsections (3) and (4).

(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.

(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a)that he or she was present with the other witnesses when the will-maker—

(i)signed the document; or

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

(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

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

(b)that he or she signed the document in the will-maker’s presence.

(6)No particular form of words is required for the purposes of subsection (5).

[11]In Re Zhou Dec'd1, MacKenzie J said:

The task of the Court is to evaluate the relevant circumstances and reach a conclusion … Because of the importance of a declaration that a will be declared valid, there must be cogent evidence to support any finding which is relied upon in determining that the Court is satisfied on the s 14(2) test.

[12]And in Re Estate of Beaumont2 MacKenzie J observed:

The power to validate a will given by s 14 of the Wills Act 2007 has been a most valuable and beneficial addition to the powers of the Court to ensure that the clearly expressed testamentary intentions of a deceased person are not frustrated by deficiencies in the formal requirements for execution…

1      Re Zhou Dec'd (HC) New Plymouth CIV-2010-443-21, 17 May 2010.

2      Re Estate of Beaumont [2013] NZHC 2719 at [10].

[13]In Amundson v Raos3 Moore J observed that:

Given that the primary enquiry under s 14 is whether the document in question expresses the testamentary intentions of the deceased, the length of time between the giving of the instructions and the death of the testator is a factor which requires examination.

Analysis

Does the draft will appear to be a will?

[14]   The draft document prepared by Mr de Hamel and forwarded to Nelson is undoubtedly a draft will.

Does the document comply with s 11?

[15]   The document is not signed or witnessed. It, therefore, does not comply with s 11 of the Act.

Did the document come into existence in or out of New Zealand?

[16]The document was prepared in Rangiora by Mr de Hamel.

Does the document express the deceased person’s testamentary intentions?

[17]   I am satisfied Nelson met with his lawyer on 17 August 2022 and again on    7 September 2022 for the specific purpose of preparing a new will. The draft will is entirely consistent with Mr de Hamel’s handwritten record of the instructions given by Nelson.

[18]   This is not a case of an unexplained delay in the execution of a will. I am satisfied the only reason the draft will was not signed was because Nelson died so shortly after it was prepared and forwarded to him. There is no reason to suggest Nelson’s position might have shifted prior to his death. I am satisfied that the draft will does represent Nelson’s testamentary intentions.

3      Amundson v Raos, [2015] NZHC 2422 at [23]; [2015] NZAR 1772.

Orders

[19]I therefore make the following orders:

(a)Granting leave for the application to be made without notice to any other person; and

(b)That the undated and unsigned draft document, a copy of which is marked “C” and attached to the affidavit of the applicant filed in support of the application, be declared valid as the last will of the deceased.

...................................................

Eaton J

Solicitors:

Brandts-Giesen McCormick, Rangiora