Estate of Kinghorn

[2020] NZHC 2043

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-22

[2020] NZHC 2043

IN THE MATTER OF

the Wills Act 2007

IN THE MATTER OF

an application by SARAH LOUISE KINGHORN for an order that the unsigned will of PAUL JAMES WILLIAM

KINGHORN is declared valid

On papers
Judgment:	12 August 2020

JUDGMENT OF DOBSON J

[1]    On 11 June 2020, Sarah Kinghorn (Sarah), the widow of the late Paul James William Kinghorn, commenced this proceeding by way of originating application seeking orders under s 14 of the Wills Act 2007 declaring an unsigned document prepared in the form of a will for Mr Kinghorn, but not signed by him, to be his valid will. Mr Kinghorn died on 16 December 2019.

[2]    The evidence in support of the application establishes that Pitt & Moore, solicitors of Nelson, received instructions from Mr Kinghorn to prepare a new will in December 2016, and a draft of the will reflecting those instructions was sent to him by email on 13 January 2017 (the draft will).

[3]    In November 2018, Mr Kinghorn advised Pitt & Moore that he had made alterations to the draft will, and wanted to make an appointment to discuss those

IN RE ESTATE KINGHORN [2020] NZHC 2043 [12 August 2020]

changes and agree on a final document. Despite reminders from the firm that the will needed to be signed, Mr Kinghorn died after a short illness without having done so.

[4]    Mr Kinghorn had married Sarah in 2010 and she believed that he had a current valid will.

[5]    Subsequent to his death, a copy of the draft will was discovered, with a number of handwritten alterations endorsed on it (the marked-up draft). That document is unsigned. It is the marked-up draft in respect of which the application for an order declaring it to be a valid will is made.

[6]    A preliminary issue as to whether the originating application ought to be served on interested parties has been addressed by memorandum of counsel in support of the application. Two potentially interested persons have been identified: first the daughter of the deceased (Tanya), and secondly his brother (Martin). The memorandum of counsel advised that the documents have been provided to both Tanya and Martin.

[7]    Tanya has provided a consent to the application. Correspondence between Pitt & Moore and Martin as to his attitude to the application is equivocal. Previous testamentary intentions of the deceased included a proposal that Martin should receive the deceased’s tools. There is no previous valid testamentary gift in those terms. There is evidence that the deceased changed his wish in respect of his tools, so that the most recent and current wish is that they should become Sarah’s property.

[8]    Martin is named as one of the two executors, with Sarah, in the marked-up draft. The memorandum of counsel advises that Martin has not responded to a number of Pitt & Moore’s most recent enquiries as to his attitude to the application. Certainly no steps have been taken by him or on his behalf to oppose this application. I am satisfied that no further directions as to service of the proceeding are warranted.

[9]    Sarah now seeks the order validating the draft will on the basis that the marked-up draft clearly reflects the testamentary wishes of Mr Kinghorn that remained current at the time of his death. Given the absence of any earlier executed will since Mr Kinghorn married Sarah in 2010, the alternative would be an intestacy.

The marked-up draft reflects relatively detailed instructions to solicitors in late 2016, with specific changes apparently endorsed in 2018. (The draft will was sent to him with the date endorsed as 2017 and the handwritten changes include changing that to 2018.)

[10]   Counsel has acknowledged the position of Martin as co-executor who has not consented to the application. If, as appears to be the case, his concern is the deceased’s decision to leave his engineering and carpentry equipment and machinery to his widow rather than to him, then that is a matter that does not directly bear on whether the document is entitled to be treated as a valid will. It will be for Martin to take his own legal advice on whether he accepts the terms of the will, or considers challenging it, once it is validated, but that is a discrete matter.

[11]   I am satisfied that an order under s 14 of the Wills Act is appropriate. I accordingly direct that no further service of the proceeding is required and make the order sought declaring the marked-up draft to be a valid will.

[12]I further order that the costs of the proceeding are to be met by the estate.

Dobson J

Solicitors:

Pitt & Moore, Nelson for applicant