Estate of Glover

[2013] NZHC 8

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-007603 [2013] NZHC 8

IN THE MATTER OF     PAUL KARL GLOVER of Auckland, Beneficiary (Deceased)

AND

IN THE MATTER OF     an application under s 14 of the Wills Act

2007

Hearing:         18 January 2013 (On the Papers)

Counsel:         R G Ewen for the Estate

Judgment:      18 January 2013

JUDGMENT OF COURTNEY J

[Re Without Notice Application under s 14 Wills Act 2007]

This judgment was delivered by Justice Courtney on 18 January 2013 at 2.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     Wynyard Wood P O Box 204231 Auckland 2161 for the Applicant

Estate of P K GLOVER HC AK CIV-2012-404-007603 [18 January 2013]

Introduction

[1]      Paul Karl Glover died in October 2010 without leaving a will that complied with s 11 of the Wills Act 2007. He did, however, leave three documents which could potentially be regarded as valid wills. These were a three page will signed only on the last page and endorsed with unsigned amendments (the 2008 will), a draft will (the 2009 will) and a handwritten note.

[2]      Mr Glover’s friend, Peter John MacLeod, who was named as executor and trustee in each document, has applied under s 14 of the Wills Act 2007 for validation of one of them as Mr Glover’s will and for directions under r 7.46 as to whether the application should be without notice (and if not, for directions as to service and representation).

[3]      Section 14 applies only to a document that appears to be a will but does not comply with the execution requirements of s 11. Under s 14(2) of the Wills Act, the High Court may make an order declaring such a document to be a valid will if it is satisfied that the document expresses the deceased person’s testamentary intentions. In doing so, the Court may consider not only the document but also any evidence as to the signing and witnessing of it, evidence as to the deceased’s testamentary intentions, evidence of statements made by the deceased.

Is notice of the application required?

[4]      A number of parties have potential claims against his estate.  These include Mr Glover’s parents, the wife from whom he separated in 2009, step-children, nieces and nephews, and two named charities.  The interests of these potential claimants are the subject of a Deed of Compromise in which the adult claimants and the representatives of minor claimants have recorded their agreement to a proposed distribution of the estate that would see Mr Glover’s parents relinquish any claim, subject to an agreed distribution that includes the nieces and nephews, as well as those named in the 2008 and 2009 wills.

[5]      The Deed of Compromise was initiated by Mr MacLeod with the intention of attempting as best he could to achieve what he believed Mr Glover had intended and to minimise the reduction of the relatively modest estate through litigation by potential claimants. The Deed records the agreed settlement but also acknowledges the need to seek an order from the Court in relation to the status of the documents. In the event of one of the documents being declared to be a valid will it is intended that an application for a grant of probate will be made in respect of it.

[6]      In these circumstances, I am satisfied that the application is properly made without notice and directions as to service and representation are not required.

Should one of the documents be declared to be a valid will?

[7]      The 2008 Will was apparently prepared by Mr Glover’s solicitor and is stated to have been made in contemplation of Mr Glover’s marriage to Pamela Denny. It left 50% of the estate to her.

[8]      The document appears to comprise three pages, though the pages are not attached to one another. Only the third page is signed. Notably, the second page (which contained the provision for beneficiaries, partially amended) was not signed. I am satisfied that these features mean that the document does not comply with the requirements of s 11(2) regarding signing of a will and that s 14 therefore applies.

[9]      I am not, however, satisfied that this document did represent Mr Glover’s testamentary intentions at the time of his death. The two alterations would have reduced the share intended for Katie Siddal and Monica Justine Allen (step- daughters) from one-fifth to 15 per cent, and the share intended for the named charity from one-fifth to 15 per cent.  These alterations would have had the effect of making 10 per cent of the estate intestate (which would have gone to Mr Glover’s parents under the Administration Act 1969).  This seems an unlikely intention, given the trouble that Mr Glover had gone to have the will drafted by solicitors and the fact that, in its original form, the whole of the estate was accounted for without providing for Mr Glover’s parents.

[10]     Subsequent  events  create  even  greater  doubt  that  this  will  reflected  Mr Glover’s testamentary intentions at the time of his death. Mr Glover and Ms Denny separated in 2009.   Mr MacLeod says that, following the separation, Mr Glover contacted his solicitor and gave instructions for a new will. According to Mr MacLeod, Mr Glover had said that he would get someone to take him into his solicitor’s office to sign the will. Clearly, however, this did not happen.

[11]     The draft will did not make any provision for Ms Denny.  The beneficiaries under the 2009 will were Tearsfund Salvation Army (25 per cent), World Vision of New Zealand (25 per cent), step-daughters Katie Siddal and Monica Allen (45 per cent), step-daughter Sheree Nelson (five percent). Given Mr Glover’s separation and and   Mr   MacLeod’s   evidence,   this   will   was   consistent   with   Mr   Glover’s circumstances  in  2009  and  more  likely  to  have  represented  his  testamentary intentions at that time.

[12]     However,  after Mr Glover’s  death  the handwritten  note  was  found.  It  is undated. It does, however, have some of the characteristics of a suicide note.  It is headed “my last will and testament not legal I know but it is what I want”.  In the body of the note, Mr Glover makes general statements of affection towards his family, his desire to see them “one day in paradise with Jesus Christ”, and that “I can die in peace now because of what he did on the cross having made peace with God for me by bearing my sins”.  He then says:

You may all hate me for this but I hope not (all my worldly possessions are to go to Peter McLeod[1]  he knows what to do with them all he will give

$6,000 back to dad pay for my funeral a cheap one and the rest is his including the car.

[1] Incorrectly spelt

[13]     Mr MacLeod does not seek to benefit from the will.  He views himself as a trustee/executor.  It is notable, though, that Mr MacLeod and Mr Glover discussed his will on a number of occasions.  Mr MacLeod said that he strongly encouraged Mr Glover to consider leaving something to his nieces and nephews, given that he

had no children of his own.  Neither the 2008 nor 2009 wills made such provision.

[14]     Taking all of this evidence into account, including the various changes in Mr Glover’s   circumstances   during   2008   and   2009   and   the   evidence   from Mr MacLeod about his discussions with Mr Glover, I have reached the view that the handwritten  note  did  express  Mr  Glover’s  testamentary  intentions  at  the  time, namely that he trusted Mr MacLeod as a close friend to distribute his estate in accordance with the discussions that they had previously had.

[15]      I therefore make an order under s 14 declaring the handwritten note to be

Mr Glover’s valid, will.

Courtney J