Estate of Greig

[2020] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV2019-409-658

[2020] NZHC 1113

UNDER	s 4 of the Wills Act 2007
IN THE MATTER OF	an application for an order declaring a document to be a valid will of GRAHAM MALCOLM GREIG

Hearing:

26 May 2020

(On the papers)

Appearances:

D Caldwell for Applicant

Judgment:

26 May 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 26 May 2020 at 11 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

RE ESTATE OF GREIG [2020] NZHC 1113 [26 May 2020]

An unexecuted will

[1]        Graham Malcolm Greig died at Christchurch, at 80 years of age, on 4 December 2018.

[2]        On 6 August 2018, he had given instructions to his solicitor to prepare a new will for him in which he provided that:

(a)nothing was left to his only family (two sisters);

(b)his estate was left to the Salvation Army, for the use of the Sydenham Christchurch Corp; and

(c)his identified executor was his solicitor, Stephen Terry Slade (the applicant in this proceeding).

[3] Mr Greig had explained to Mr Slade that he particularly wanted his house to go to the Salvation Army (his house being opposite the Salvation Army property in Sydenham). Mr Slade discussed with him the possibility that, if Mr Greig had to go into care, there would likely be no house property left on death but only cash assets. Mr Slade suggested that Mr Greig might consider including other charities also as beneficiaries. Mr Greig’s instructions nevertheless remained the same, namely that he wanted a will as described at [2] above.

[4]        Mr Slade promptly drew up such a will, in accordance with Mr Greig’s instructions. He labelled it Option 1. At the same time, Mr Slade drew up a second document (labelled Option 2) in which any property owned at the date of Mr Greig’s death would go to the Salvation Army but any residue would be divided 80 per cent to the Salvation Army, 10 per cent to the SPCA and 10 per cent to another (unidentified) charity.

[5]        Mr Slade explained in a covering letter sent to Mr Greig on 7 August 2018 that he had prepared Option 1 in accordance with Mr Greig’s instructions but that he was also enclosing an Option 2 as another possible approach.

[6]        With his covering letter, Mr Slade also included information relating to funerals conducted by The Little Kiwi Funeral Company. Options for funeral arrangements had been discussed between Mr Slade and Mr Greig at their meeting. But Mr Slade had prepared both draft wills with a clause which read: “I WISH for my body to be cremated/buried and for my funeral arrangements to be decided by my family.”

[7]        It transpires that Mr Greig had also discussed his testamentary intentions with a member of the Wills and Bequests Team of the Salvation Army’s Public Relations Department, Jonathan Kent Manning. Mr Greig had first met Mr Manning on 13 June 2018, some eight weeks before he instructed Mr Slade. Mr Greig had telephoned the Salvation Army to indicate that he was interested in leaving property to the Salvation Army in his will. He explained to Mr Manning that he had never married and did not have children. He explained that his only family were his estranged surviving sisters, who he did not want to be beneficiaries. He told Mr Manning that he wished to leave his house to the Salvation Army and that he was going down to his solicitor to have a will drawn up.

[8]        On 14 August 2018, eight days after he had seen Mr Slade, Mr Greig spoke to Mr Manning once again. He confirmed that he had seen his solicitor and that his will had been drafted so that the Salvation Army would receive his house.

[9]        Mr Slade was contacted on 5 December 2018 by a police constable. He was informed that Mr Greig had died and that his correspondence and a draft will had been found at Mr Greig’s home. Mr Slade attended the home on 6 December 2018 where he recovered, from amongst Mr Greig’s important correspondence, Mr Slade’s letter to Mr Greig and the draft wills.

[10]      Clause 2 of the Option 1 will had been amended. The word “buried” had been deleted (leaving the instruction for cremation). The words “decided by my family” had also been deleted and replaced with the handwritten words “conducted by THE LITTLE KIWI FUNERAL COMPANY”.

[11]There were no amendments on the Option 2 version.

[12]      Mr Slade also found with Mr Greig’s documents a letter dated 17 August 2018 from Ian Bell of The Little Kiwi Funeral Company. In it, Mr Bell recorded that he and Mr Greig had met earlier that week and discussed funeral requests. Mr Bell recorded:

As discussed, please inform your executor and the Salvation Army, that you have made your wishes for your cremation, known to The Little Kiwi Funeral Company.

[13]      Mr Bell then set out the current cost for Mr Greig’s funeral arrangements. At the bottom of the letter, someone (apparently Mr Greig) had handwritten:

Paid per cheque no 100478 30/8 marked 31/8/18.

[14]There is no evidence that Mr Greig executed the drafted will before he died.

The application

[15]      Mr Slade applies for a declaration that the Option 1 document is valid. The document does not comply with s 11 Wills Act 2007 (the Act) because it was not signed and witnessed as required by s 11(2) of the Act.

[16]      The declaration sought is the subject of written consents from Mr Greig’s sisters who are Mr Greig’s surviving siblings. On review of the matter by counsel, the children of Mr Greig’s deceased siblings (nieces and nephews) were also identified as persons who are affected by the granting of the orders.1

[17]      All seven nieces and nephews were provided with copies of the application and counsel’s supporting memorandum. Signed consents were received from all but one nephew who returned a signed waiver of independent advice that was sent as part of the documentation but did not attach the consent to his reply email. After twice being followed up by Mr Slade’s solicitor, the nephew’s response was “that’s all you are getting I am over this”.

[18]      Beyond his terse reply, the nephew has taken no further steps. I accept his response is to be reasonably interpreted, not as an expression of opposition to the application, but one of frustration and impatience at having to attend to or be involved

1      Administration Act 1969, s 77, cl 6 and s78.

in this matter. In the circumstances, I do not consider formal service of the nephew is necessary given his strong indication that he wants nothing more to do with the process. It would only result in unwarranted delay in finalising the estate.

The power of validation

[19]      By s 14 of the Act, this Court has power to declare a document to be a valid will. The section 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.

[20]      This Court has, on a number of occasions, dealt with circumstances in which the subject document is a draft will prepared by the deceased’s solicitor in accordance with their instructions. In Re Hickford (dec'd), MacKenzie J stated in relation to one such will:2

[9]The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:

(a)That he had changed his mind about making a will;

(b)That he overlooked or forgot about signing the will; or

2      Re Hickford (dec'd) HC Napier CIV-2009-441-369, 13 August 2009.

(c)That he did not think that he needed to do anything further.

[21]      MacKenzie J in a subsequent case clarified that his Honour had not intended to suggest that those three possibilities would be the only possibilities which might arise on the facts of any particular case.3

[22]      In the meantime, in Gladwin v Public Trust, Woolford J identified as a further possibility, which on the facts might justify a declaration of validity, that a person (rather than overlooking or forgetting to sign a will) may intend to do so but never get around to it before their death.4

Discussion

[23]      Mr Greig’s draft (Option 1) will was the document prepared by Mr Slade in accordance with precise and comprehensive instructions. It flowed from a deliberate decision to benefit the Salvation Army and to not benefit Mr Greig’s surviving siblings or, indeed, any other family members.

[24]      There is an inference to be drawn from the timing of events leading to Mr Greig’s death (the cause of which is recorded on his death certificate as “heart disease 18 months”) that Mr Greig was attending to his will instructions and arrangements for his funeral service with some knowledge of his poor state of health.

[25]      I am satisfied that he was probably focused on taking those various steps and less focused on the need, as a matter of law, to execute his document. I am satisfied that he must have overlooked reverting to Mr Slade for the final execution of the will, or simply did not get around to attending to it. There is no indication that Mr Greig had changed his mind or varied his plans.

[26]      I am satisfied on the evidence that the Option 1 document, both at the time Mr Greig made his handwritten amendments to it and as at the date of his death, reflected his testamentary intentions.

3      Re Fraser HC Napier CIV-2011-441-700, 20 December 2011 at [8].

4      Gladwin v Public Trust [2011] 3 NZLR 566 (HC) at [22].

[27]This is an appropriate case in which to declare the document valid.

Order

[28]I order:

(a)The draft will document, marked “Option 1”, as posted to Graham Malcolm Greig on 7 August 2018 and as amended in handwriting on an unknown date thereafter is valid as a will.

(b)There is no order as to the costs of this proceeding.

Solicitors:

Cashmere Law, Christchurch