Estate of Hutton - [2024] NZHC 2277

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2277
Decision Date: 14 August 2024

CaseChat Overview and Summary

Bernard Allin Hutton passed away on 26 November 2023. He had executed a will dated 28 March 2012, but prior to his death, he had instructed Christopher Simpson to prepare a new will. Although a draft of the new will was prepared and confirmed by Bernard over the phone on 24 November 2023, Bernard died before he could sign the draft. The applicants, Simpson and Mark Sherry, seek a declaration that the draft will is a valid will under section 14 of the Wills Act 2007, as it does not comply with section 11 of the Act. Bernard's de facto partner, Sarah, consents to the application, while his children, Kirstie and Matthew, have not opposed the application.

The primary legal issue in this case is whether the draft will, which was not signed by Bernard, can be declared a valid will under section 14 of the Wills Act 2007. The court must determine if the draft will accurately reflects Bernard's testamentary intentions and if the requirements of section 14 are met. The court's reasoning hinges on the balance of probabilities that the draft will expresses Bernard's testamentary intentions, focusing on the substance and intention rather than technicalities. The court considered evidence of Bernard's instructions to Simpson, the draft will's consistency with previous wills, and the consent of Sarah and the non-opposition of Kirstie and Matthew. The court found that the draft will does indeed express Bernard's testamentary intentions.

The court concluded that the draft will accurately records Bernard's testamentary intentions and is consistent with his previous wills. Given that Bernard intended to sign the draft will but died before doing so, the court declared the draft will to be Bernard's last valid will. This decision ensures that Bernard's intentions are given effect, in line with the remedial purpose of section 14 of the Wills Act 2007.

The final order declares the draft will, annexed as exhibit "D" to Simpson's affidavit, to be Bernard Allin Hutton's last valid will.

Orders