Estate of Hillman

[2019] NZHC 2329

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-622

[2019] NZHC 2329

IN THE MATTER

of Section 14 of the Wills Act 2007

AND IN THE MATTER

of an application by ELIZABETH MARY WATERS and ANDREW HILLMAN for an

order that a document be declared a valid will of the deceased KATHLEEN FRANCES HILLMAN

Hearing:	16 September 2019
Appearances:	EJR Barley for the Applicants
Judgment:	16 September 2019

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:

Alan Jones Law Limited, North Shore, Auckland

Estate of Hillman, re application to declare will valid [2019] NZHC 2329 [16 September 2019]

[1]    The applicants, Ms Waters (Elizabeth) and Mr Hillman (Andrew), are respectively the daughter and one of the sons of the deceased Kathleen Frances Hillman. They seek orders under s 14 of the Wills Act 2007 (the Act), declaring a will dated 8 March 2016 valid despite noncompliance with the formal requirements of s 11 of the Act.

[2]    Non-compliance has occurred because no witnesses were in the will-maker’s presence when it was signed by her. The document does purport to contain one witnesses signature – that of the deceased’s care-giver Ms Bendall – but her evidence is that the deceased did not sign the document in her presence. Rather, that Ms Bendall signed as witness, effectively in advance, and left the document with the deceased for her later signature.

[3]    These and other circumstances in which the document came to be prepared and signed are unusual and I will therefore set them out in detail.

[4]    Sometime in or around 2010 the deceased gave instructions to her solicitor, Mr Jones, to prepare a will, which he did, but which remained unsigned. Approximately five years later, when the deceased was in her 90s, she requested Elizabeth to obtain a copy of the draft from Mr Jones. Mr Jones emailed this to Elizabeth on 5 February 2016. The draft that he sent is identical to the document subsequently signed by the deceased save that in the draft the residue passes to Elizabeth and Andrew in equal shares,1 whereas in the signed document the residue passes to Elizabeth, Andrew and the deceased’s second son Richard in equal shares. When the draft was received by Elizabeth, she noticed the omission of Richard from the residue clause and, understanding that to be contrary to her mother’s wishes, amended the document (which had been sent to her in Word format). In the result, the document then referred to the division of “the residue equally among such of my said daughter Elizabeth and sons Andrew and Richard as survive me provided that if either of them should die before me leaving a child living … such issue shall take”.

[5]    This has created an awkwardness in the language because the phrase “if either”, which referred to two persons in the draft, refers to three persons in the

1      There is a gift over in the event that they do not survive the deceased.

amended version. However, all three children have survived the deceased so that no practical issue arises in this respect.

[6]    Elizabeth deposes that, having amended the document, she left it with her mother on or about 10 February 2016 “for her to read and advise Alan Jones or myself of any changes”.

[7]    Andrew in turn deposes that on 8 March 2016 the deceased signed the will in his presence. He says that he did not sign as a witness because he believed his status as executor and beneficiary precluded it. He confirms that prior to his mother signing the will he read it fully to her and that his mother then took the will and read it herself. He says that although she was 94 at the time she could still read “far better than myself and seemed to understand it thoroughly and to have full knowledge of its contents”. It appears that the document had already been signed by Ms Bendall, purportedly as witness, by this stage.

[8]    I accept the evidence of Elizabeth and Andrew as credible. The fact that the addition of Richard was against both their own interests reinforces that conclusion. I note also the memorandum from Mr Jones confirming that the “omission of the deceased’s son Richard from the draft will was a drafting error on my part”.

1. I am satisfied in terms of s 14 of the Act that:

(a)the signed document appears to be a will. It is so intituled on its coversheet, was prepared by a solicitor for testamentary purposes and meets the requirements of s 8(1)(a) and (b) of the Act,

(b)there is noncompliance with s 11, and

(c)the document came into existence in New Zealand.

[10]   I am satisfied also that the document expresses the deceased person’s testamentary intentions and that it is appropriately declared valid under s 14 of the Act.

[11]   In coming to that conclusion, I am reinforced by the fact that each of the four (and only) grandchildren identified in the will as receiving specific legacies and each of the deceased’s three children consent to the application.

[12]   I requested Mr Barley’s specific confirmation that there are no additional grandchildren nor any additional children. He has provided me with that confirmation on which I rely in making the order sought.

Result

[13]   I order that the signed document annexed as Exhibit A to the affidavit of Elizabeth Mary Waters dated 8 March 2016 be declared the valid will of the deceased Kathleen Frances Hillman, late of 29 Wellington Road, Waiheke Island, New Zealand, Retired.

Muir J