Estate of Jowitt

[2018] NZHC 3181

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2660

[2018] NZHC 3181

IN THE ESTATE OF PAUL HUGHAN JOWITT deceased

Hearing:	On the papers
Counsel:	L T Meys
Judgment:	5 December 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 5 December 2018 at 1.00pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:
Neilsons Lawyers, Auckland

Re. Estate P H JOWITT [2018] NZHC 3181 [5 December 2018]

[1]                   In December 2017, Mr Paul Jowitt was in Middlemore Hospital in Auckland. He told his sister-in-law, Ms Shirley Carter, he had changed his will, it was on his computer and he had not yet signed it. On 28 December 2017, she retrieved it from his computer without making changes, printed it off, and took it to Mr Jowitt. He signed it the same day and his nurse, Ms De-Anne Ward, signed as witness.

[2]                   There are a number of changes between what was signed on 28 December 2017 and the previous will:

(a)Ms Carter becomes an executor and trustee in place of Mr Jowitt’s brothers, Mr Kevin Jowitt, (alongside a friend of Mr Jowitt’s, Mr Roger Birchall, in both cases).

(b)Mr Jowitt’s Rambler classic car is left to the Hamilton Car Museum rather than the Southward Car Museum.

(c)A time limit is put on expenditure of the funds Mr Jowitt allocated for the Glenbrook Vintage Railway to restore Steam Locomotive A423, which he jointly owned with Mr Kevin Jowitt.

(d)Any tools and equipment Mr Kevin Jowitt did not want are to be gifted to a technical training institution or sold and their proceeds go to the estate rather than to a training institution.

(e)Mr Kevin Jowitt is left a microwave and digital camera, other personal effects are no longer left to Mr Kevin Jowitt and additional items are left to Ms Carter.

(f)A larger share of the residual estate goes to the SPCA (20% not 10%) and to Cancer Research (30% not 15%).

[3]                   Section 11(4) of the Wills Act 2007 requires a will be witnessed by two persons who were together in the will-maker’s presence when the will-maker signed the will. Under s 14, the High Court is empowered to declare a document valid if it appears to

be a will, does not comply with s 11, came into existence in New Zealand and the judge is satisfied the document expresses the deceased’s testamentary intentions.

[4]                   Ms Carter and Mr Birchall are named as executors in the proposed will. Together, they apply for the document signed on 28 December 2017 to be declared valid under s 14 of the Act. Mr Birchall gives evidence of Mr Jowitt expressing to him in 2017 the intention to make the changes regarding the Rambler and the train. I have affidavits from Ms Carter and Mr Birchall and consents to the application signed by the Southward Car Museum, Mr Kevin Jowitt and the Glenbrook Vintage Railway Trust.

[5]                   On the basis of the evidence before me, I am satisfied the document signed on 28 December 2017 expresses Mr Jowitt’s testamentary intentions and the other pre- conditions of s 14 of the Wills Act 2007 are satisfied. I declare the document valid.

Palmer J