Estate of Holt

[2022] NZHC 280

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000053

[2022] NZHC 280

IN THE MATTER OF

Section 14 of the Wills Act 2007

AND

IN THE MATTER OF

an application by JO-ANNE JUDITH FOOT for an order that a document be declared a valid will of the deceased PHILIP DAVID HOLT (DECEASED)

Applicant

Hearing:	(Dealt with on the papers)
Counsel:	N J Sowman for Applicant
Judgment:	25 February 2022

JUDGMENT OF EATON J

Introduction

[1]                  On 19 July 2016 Philip David Holt (Mr Holt) and his de-facto partner, Jo-Anne Judith Foot (Ms Foot), met with their solicitor, Mr Costelloe, and instructed him on a range of matters including the preparation of new wills. Mr Costelloe was a friend of Mr Holt and Ms Foot. He duly prepared draft wills in accordance with his instructions and emailed the drafts to Mr Holt and Ms Foot on 9 August 2016 for their review prior to a meeting that had been scheduled the same day to discuss a complex conveyancing matter.

RE ESTATE OF PHILIP HOLT [2022] NZHC 280 [25 February 2022]

[2]                  The draft wills were not signed at that meeting and, despite several reminders over time, were never signed.  The most likely  explanation for that failing is that   Mr Holt and Ms Foot moved from Christchurch, where Mr Costelloe was based, to Pohara in Golden Bay.

[3]                  Sadly, Mr Holt died at Takaka in Golden Bay, on or about 14 September 2021. As at the date of his death he had not signed the draft will.

The Application

[4]                  On 16 February 2022 Ms Foot 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.

[5]                  Other than Ms Foot, the only other persons with an interest in Mr Holt’s estate are his children, Jonathan Philip Holt and Rebecca Kaye Holt. Both Jonathan and Rebecca are aware of and consent to the orders sought in Ms Foot’s application.

Background

[6]                  Mr Foot had previously been married to Rosa Carter. Mr Holt and Ms Carter are the parents of Jonathan and Rebecca. Mr Holt made a will dated 9 October 2008. That will appointed Ms Carter to be the sole executrix and trustee and provided that if she did not survive him for seven days that role was to be performed by his sister, Karen Austin and a solicitor. Mr Holt and Ms Carter filed for divorce on 12 June 2014 and their divorce was finalised by mid-2015.

[7]  Ms Foot and Mr Holt were in a de-facto relationship for about eight years preceding his death. Each owned a residential property in Christchurch

[8]                  Ms Foot and Mr Holt met with their solicitor, Mr Costelloe, on 19 July 2016 to  discuss  a  variety  of   matters   including   their   purchase   of   a   property  at 33 Richmond Road, Pohara.

[9]                  It was agreed they would purchase the property as tenants in common in equal shares and that the purchase would be financed by way of mortgage over Ms Foot’s Christchurch property. It was agreed a relationship property agreement was to be completed, pursuant to which Mr Holt’s and Ms Foot’s residential properties would be retained as separate property. The relationship property agreement was to record that in the event of either Mr Holt or Ms Foot dying, the Pohara property would pass to the survivor.

[10]              Mr Costelloe was instructed to prepare wills under which each of Ms Foot and Mr Holt was appointed as a trustee of the other’s will along with Ms Austin for Mr Holt and Andre Chappell (Ms Foot’s sister’s partner) for Ms Foot.

[11]Mr Costelloe recorded his instructions in the following terms:

The wills will provide that Pohara goes to the survivor. Everything else will go to your respective children at age 25 years.

[12]              Draft wills were prepared by Mr Costelloe in accordance with his instructions and forwarded to Mr Holt and Ms Foot. Signing of the will was raised by Mr Costelloe on several occasions.

[13]              On 22 February 2019, Mr Holt signed a “Will & Enduring Power of Attorney revocation” form he received from Perpetual Guardian in relation  to  a will  dated  16 July 1993. That will had been revoked by his marriage to Ms Carter. Mr Holt had written “Pending”, in response to a question as to whether he had made a later will which does not appoint Perpetual Trust or Guardian Trust as his executor.

[14]The draft will was never signed.

Jurisdiction and Principles

[15]              This application is properly considered under s 14 of the Act. That is because the draft will purports to be a will but in a number of material respects does not comply with the formalities required by s 11 of the Act.

[16]Section 14 states:

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.

[17]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).

[18]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.

[19]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].

[20]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.

[21]              In Amundson v Raos, Moore J observed that a significant delay and ultimate failure by the deceased to sign their draft will is not necessarily fatal to a s 14 application, and recognised that a possible explanation as to why a deceased did not sign a will was because the testator “was so busy or distracted that he or she simply did not get around to executing the will.

Analysis

Does the draft will appear to be a will?

[22]The draft document prepared by Mr Costelloe is plainly a draft will.

Does the document comply with s 11?

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

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

[24]The document was prepared by Mr Costelloe in Christchurch.

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

[25]              In my view there is cogent evidence the document expresses Mr Holt’s testamentary intentions. His instructions to Mr Costelloe are recorded in an email sent by Mr Costelloe to Mr Holt and Ms Foot shortly following a face to face meeting at which Mr Holt gave clear instructions. The draft will is consistent with those instructions. I am satisfied that it was merely oversight that the draft will was never signed.

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

[26]              I am satisfied the “pending” will Mr Holt referred to in 2019 is the draft will I am asked to validate. I have no difficulty concluding that Mr Holt’s testamentary intentions had not changed notwithstanding the passage of time since the draft will was prepared.

[27]              I am comforted in that finding knowing Mr Holt’s children agree the draft will ought to be validated.

Orders

[28]I make orders in terms of the application:

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

(b)the undated and unsigned draft document, a copy of which is marked “A” 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:
Malley & Co, Christchurch

Solicitors:

Malley & Co, Christchurch