Estate of Hutton
[2024] NZHC 2277
•14 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-14
[2024] NZHC 2277
UNDER the Wills Act 2007 IN THE MATTER
of the Estate of BERNARD ALLIN HUTTON
AND
IN THE MATTER
of an application by CHRISTOPHER CHARLES SIMPSON and MARK DANIEL
SHERRY for an order that a document be declared a valid will
Hearing: On the papers Counsel:
G J Olliver for applicants
Judgment:
14 August 2024
JUDGMENT OF EATON J
This judgment was delivered by me on 14 August 2024 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
RE ESTATE HUTTON [2024] NZHC 2277 [14 August 2024]
Introduction
[1] Bernard Allin Hutton (the deceased/Bernard) died on 26 November 2023. Bernard died having executed a last will dated 28 March 2012 (the 2012 will). Before his death the deceased gave instructions to the applicant, Christopher Simpson, to prepare a new will. The evidence is that this will was prepared in draft and that its terms were confirmed by the deceased over the telephone on 24 November 2023 (the draft will). Bernard was in hospital at the time, and it was expected that arrangements would be made on the following Monday for him to sign the will. Bernard died on 26 November 2023, before the draft will could be executed.
[2] The applicants, Mr Simpson and Mr Sherry, are both partners at the law firm Harmans Lawyers. They make an originating application for an order declaring that the draft will of the deceased be declared a valid will under s 14 of the Wills Act 2007 (the Act). The declaration is sought because the document does not comply with s 11 of the Act.
[3] The deceased’s long-term de facto partner, Sarah Jane Harding (Sarah), consents to the making of an order declaring the document to be a valid will. The deceased’s two children, Kirstie Jan Hamilton (Kirstie) and Matthew James Hutton (Matt) have been served with the application. They have not filed a notice of opposition to the application, nor have they filed their consent. Dunningham J issued a minute on 24 June 2024 noting counsel’s advice to the Court that Kirstie or Matt neither oppose nor support the application. Dunningham J then directed that the application be determined by way of formal proof.
Background
[4] The relevant background and material facts are set out in the affidavit of Mr Simpson sworn on 22 December 2023 (Mr Simpson’s affidavit).
[5] Mr Simpson met with Bernard on 12 July 2021 and the two discussed his instructions for a new will. A draft will was prepared in January 2022 that reflected the 12 July 2021 discussions. The two met again on 24 January 2022 and Mr Simpson presented the draft will to Bernard for discussion who confirmed his instructions were
the same as on 12 July 2021. Due to an urgent telephone call, the will could not be signed.
[6] On 24 November 2023, Mr Simpson received a text from Bernard advising that he was in hospital with another heart attack. The text said that “… I think we should tidy up the will …”. Mr Simpson texted Bernard “Yes, we should …”.
[7] Following that exchange Mr Simpson called Bernard. Mr Simpson read out the terms of the will. Bernard confirmed these were to be the terms of his will with one addition, namely, to provide for him to be buried at the Shands Road cemetery.
[8] Bernard explained that his present predicament was due to having had a new pacemaker installed a couple of weeks prior which had not settled down. He was confident he was not facing a life ending threat, that he would be okay over the coming weekend and that he expected to be released from hospital next week. Based on that assurance, Mr Simpson said he would contact him first thing on 27 November 2023, enquire as to whether he was still in hospital or had been released, and arrange to meet with him to sign his will. Bernard confirmed that this arrangement suited him.
[9] Sadly, Bernard died early on 26 November 2023 before he was able to sign the draft will. His last signed will is the 2012 will. Mr Simpson has deposed that to the best of his knowledge, the deceased made no other wills other than the 2007 and 2012 wills made in collaboration with Harmans.
Previous Wills
[10] Under the 2012 will, the deceased appointed Mr Simpson and fellow Harman’s partner, Mark Daniel Sherry, as the executors and trustees of his estate. The residue of the deceased’s estate under the 2012 will was to be divided equally between the deceased’s children, Kirstie and Matt. The 2012 will replaced an earlier will dated 27 February 2007 (the 2007 will). The 2007 draft will also appointed the applicants as executors and trustees. That will divided the residue of the estate into three parts with two parts given to the deceased then partner and one part to be shared equally between his two children and the daughter of his then partner.
Draft Will
[11] The draft will similarly appoints the applicants to be the deceased’s executors and trustees. It revokes all previous wills. It divides the residue of the estate into three parts and gives two parts to Sarah, and one part shared equally between Kirstie and Matt.
[12] Mr Simpson deposes that the only people adversely affected if the draft will is declared valid are Kirstie and Matt as their benefit will decrease from that given in the deceased’s 2012 will. Sarah has the most to benefit if the application is allowed as she has no entitlement under the 2012 will.
Service
[13] In a judgment dated 8 February 2024, Associate Judge Paulsen made an order directing service of the proceedings on Sarah, Kirstie, and Matt.1 All three were served on 15 February 2024 by agreement pursuant to r 6.7 of the High Court Rules 2016 (the Rules). The Judge also made the following orders:
(a)the appointment of the applicants as temporary administrators of the deceased’s estate under s 7 of the Administration Act 1969 with the rights of a General Administrator other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties and fees;
(b)that the applicants’ reasonable costs in the administration pursuant to the temporary grant of administration of the deceased’s estate would be paid out of the deceased’s estate; and
(c)the order in (a) above shall remain in place until the grant of probate of the deceased’s last will or further order of the Court.
[14] Kirstie and Matt communicated their acceptance of service via email. They also acknowledged receipt of service via email.
1 Re Hutton [2024] NZHC 103 at [16].
Law
[15] Section 11 of the Act requires a will to be in writing and sets out specific requirements for how the will must be signed and witnessed, as set out below:
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).
[16] Pursuant to s 14 of the Act, this Court has the power to validate a document that appears to be a will and does not comply with s 11 of the Act if it is satisfied that the document expresses the deceased person’s testamentary intentions. In making its determination as to whether to validate the document, the Court may consider the document; evidence as to the signing and witnessing of the document; evidence as to the deceased person’s testamentary intentions; and evidence of statements made by the deceased person.2
[17] This Court in McKay v Society of St Vincent De Paul New Zealand summarised the applicable law as follows:3
[12] The principles to be applied in the present context are now well established. In short, the onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased. The Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.
[13] In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.
(footnotes omitted)
[18]In Re Estate of Campbell (dec’d), Mackenzie J stated:4
The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that
2 Wills Act 2007, s 14(3).
3 McKay v Society of St Vincent De Paul New Zealand [2022] NZHC 846.
4 Re Estate of Campbell (dec’d) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18]. See also Re Jackson [2024] NZHC 297 at [17].
those intentions are given effect, in preference to the disposition of property which would take effect under any previous will, or an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.
Analysis
[19] The draft will does not accord with s 11 of the Act as it was not signed. In all other aspects it appears to be a will.5 Its contents deal with the disposition of the deceased’s property.6 It came into existence in New Zealand. The three criteria in s 14(1) of the Act are met.
[20] I accept that the only interested parties are Sarah, who consents to the application, and the deceased’s children, Kirstie and Matt, who have not taken any formal steps in the proceeding.
[21] Ms Olliver, appearing on behalf of the applicants, has made available an email dated 24 June 2024 received from counsel instructed to advise Kirstie and Matt. That email confirms that, after reflecting upon discussions they had with their father leading up to his death, they neither consent nor oppose the application to validate the draft will. The email records that their father did not discuss the contents of his will with his children but did tell them that it was “all sorted” shortly before his death. Kirstie and Matt’s position is that they could not formally provide their consent to the application but do not wish to be obstructive or seen as acting in a self-interested manner. They do not object to the application being granted. Their counsel had indicated a willingness to attend the hearing of the application, confirming that he could do no more than confirm the position as I have summarised. In the circumstances I did not consider it necessary to hear from their counsel.
[22] Mr Simpson and Mr Sherry depose that the draft will accurately records the deceased’s testamentary intention and is clear on its face regarding the deceased’s wishes. Mr Simpson deposes that he read the draft will to the deceased over the phone and the deceased confirmed that the contents of the draft will were correct and asked
5 Re Estate of Campbell (dec’d), above n 4, at [11].
6 Wills Act, ss 8(1)(b)(i) and 14(1)(a).
only that his intention to be buried at the Shands Road cemetery be added to the will. I am satisfied that arrangements were made for the deceased to sign the draft will, and that he would have signed the draft will but for his untimely passing. The draft will is consistent with the deceased’s previous wills in seeking to divide the estate between his children and his then partner. He did not have a partner at the date of the 2012 will.
[23] I am quite satisfied the draft will expresses the deceased’s testamentary intentions. The requirements under s 14 are met.
Order
[24] I declare that the document annexed as exhibit “D” to Mr Simpson’s affidavit in support of the originating application sworn on 22 December 2022, is the last valid will of the deceased, Bernard Allin Hutton.
...................................................
Eaton J
Solicitors:
Harmans Lawyers, Christchurch Mr Simpson
0
4
0