Estate of Hutton

[2014] NZHC 3174

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-011516 [2014] NZHC 3174

IN THE MATTER

of s 14 of the Wills Act 2007

AND IN THE MATTER

of the estate of LORNA LUCY HUTTON of Auckland in New Zealand, Retired, Deceased

BETWEEN

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED as executor of the estate of LORNA LUCY HUTTON

Plaintiff

On thepapers:	11 December 2014
Counsel:	C J Kelly for Plaintiff
Judgment:	11 December 2014

JUDGMENT OF WILLIAMS J

[1]      The plaintiff is the New Zealand Guardian Trust Company Limited.  It is the executor and trustee of the estate of the deceased.   She left a will dated 6 August

1998 in which subject to two small monetary bequests to charities, she left the remainder of her estate evenly to a nephew, David John Deane Cannon and a niece Elva June Hata.

[2]      When David Cannon and his wife Yeon-Kyung Jung were at the deceased home clearing it out, they found a purported codicil.  It was signed by the deceased and written entirely in her handwriting but it was not witnessed according to the requirements of the Wills Act 2007.

[3]      The codicil is dated 24 September 2013.  It contains four clauses:

Estate of Lorna Lucy Hutton [2014] NZHC 3174 [11 December 2014]

(a)      The contents of home, Tower Investment and  balance of Westpac Access and Simple Saver Accounts were to go to her nephew David John Deane Cannon;

(b)      All jewellery would go to “Yeon Kyung Cannon”;

(c)       Car,  Contact  Energy  shares  and  $5,000  to  David’s  son,  Richard

Thomas Cannon; and

(d)      Westfield Trust shares to Elva June Hata.

[4]      Those  affected  by  this  change  to  the  1998  will,  if  validated,  are  David Cannon and Elva Hata because there will be a minor subtraction from the overall account as a result of the bequest to David’s son.  On the other hand, they obtain specific bequests not provided for under the will.  The bequests to charities will be unaffected.

[5]      All affected parties consent to the application.  Section 14 of the Wills Act relevantly requires that a document may be validated if it:

(a)       appears to be a will; and

(b)      does not comply with section 11.

[6]      Section 8(3) includes within the definition of a will, a document that changes a will – i.e. a codicil.

[7]      I may make an order validating the codicil if satisfied that it expresses Lorna Hutton’s testamentary intentions.   There can be no doubt that it does.  All parties who knew her confirmed that the document is in her handwriting.   It is entirely legible and clear as to its intentions. That is sufficient for my purposes.

[8]      I direct that it is appropriate therefore to commence these proceedings by originating application in accordance with Part 18 of the rules.  No service will be required, all affected parties having been notified.  I then declare that the codicil is

valid  accordingly  under  s 14.    It  will  be  appropriate  to  grant  probate  once  an

application is filed.

Williams J

Solicitors:

Greg Kelly Law Limited, Wellington