Estate of Larnach

[2024] NZHC 399

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-121

[2024] NZHC 399

IN THE MATTER OF

Section 14 of the Wills Act 2007 and

an application by SARAH MAKARINI

LARNACH, for an order that a document be declared a valid Will of the deceased CRAIG LARNACH

Hearing:	On the papers
Appearances:	J C Gwilliam for Applicant
Judgment:	29 February 2024

JUDGMENT OF CHURCHMAN J

[1]                 By application dated 1 February 2024, Sarah Makarini Larnach (the applicant) applies without notice for an order declaring a document to be a valid Will in accordance with s 14 of the Wills Act 2007 (the Act).

Facts

[2]                 Craig Larnach (the deceased), the father of the applicant, died in Upper Hutt, New Zealand on or about 22 June 2023.

[3]                 On 1 December 2020, the deceased instructed Susanna Hume, a legal executive, to draft a Will for him. He was provided with the draft on 21 December 2020. After a number of follow up discussions, the deceased informed Ms Hume that

ESTATE OF LARNACH [2024] NZHC 399 [29 February 2024]

he did not wish  to  proceed  at  that  time,  resulting  in  his  file  being  closed  on  13 December 2021.

[4]                 On 9 June 2023, Ms Hume was contacted by the applicant who let her know that the deceased was in hospital with cancer, and that he was advised to arrange for enduring powers of attorney and Will documents as soon as possible. The applicant later provided Ms Hume with a letter dated 13 June 2023 confirming the deceased had capacity to instruct Ms Hume in regard to updating his Will.

[5]                 On 15 June 2023, Ms Hume was informed by the applicant that the deceased would be sent home from hospital and that it was requested that Ms Hume make a home visit to receive instructions from the deceased.

[6]                 On 20 June 2023, Ms Hume made such a visit and, with the applicant present, the deceased instructed Ms Hume to make some changes to the Will he originally had given instructions for in 2020. Ms Hume took notes whilst receiving these instructions, which were used to draft a Will (the 2023 document). The deceased died two days later before executing the Will. The 2023 document was prepared  from  Ms Hume’s notes after the deceased’s death.

Grounds

[7]                 The grounds upon which the applicant relies in contending that the 2023 document is a valid Will are that:

(a)the applicant is the executor named in the document;

(b)the document appears to be a Will;

(c)the document came into existence in New Zealand;

(d)the document has not been executed in the manner prescribed in s 11(4) of the Wills Act 2007 because the deceased died prior to signing the Will and it has not been signed by two witnesses;

(e)the document expresses the deceased’s testamentary intentions;

(f)all persons who may be potentially affected by the granting of the order have consented to this application.

[8]                 The applicant acknowledges there is conflicting authority on whether a document created after a Will-maker’s death is capable of being validated. Although in Re Estate of Feron such a document was held to not be capable of being a valid as a Will,1 this was not followed by Toogood J in Pfaender v Gregory, where such a document was held to be capable of being validated as a Will, so long as the evidence showed it reflected the Will-maker’s intention.2 Toogood J stated there was nothing in the text or purpose of the Wills Act precluding a finding that a Will made after the death of the Will-maker is capable of being validated.3

Analysis

[9]                 For the Court to declare this document to be a valid Will, it must satisfy the requirements of s 14 of the Act. The 2023 document clearly appears to be a Will, and meets the requirements of s 8(1) of the Act, and does not comply with s 11, as it is not signed and witnessed as required by that provision.

[10]              Based on the information in the affidavit filed by Ms Hume, I am satisfied that that the document was written in New Zealand, given she is based in Lower Hutt.

[11]              There is clear evidence to support a finding that the document expressed the deceased’s testamentary intentions. The notes appended to Ms Hume’s supplementary affidavit dated 1 February 2024 and marked “A” are in the form of handwritten amendments to the deceased’s previous draft Will prepared in 2020. When comparing these to the 2023 document, there is clear consistency between the two documents with the same provisions including how the residue is to be distributed amongst the deceased’s children, and the applicant’s right of residence at the deceased’s house for

1      Re Estate of Feron [2012] NZHC 44 at [13].

2      Pfaendar v Gregory [2018] NZHC 161.

3 At [34].

two years upon his death. This suggests that the deceased’s testamentary intentions, as recorded in the notes, are indeed reflected in the 2023 document.

[12]              As noted by the applicant, Re Feron does state that a document drafted after the death of the Will-maker does not qualify as a document under s 14. However, the more recent case of Pfaender makes clear there is nothing in the Act that prescribes this. Furthermore, in this case, the 2023 document acts as a formalised version of the notes taken recording the deceased’s instructions. It would be illogical to consider the prior notes to be capable of validation, but the essentially identical, properly drafted Will to be incapable of validation.

[13]              In Re Wilson,4 Dunningham J considered that an unwitnessed Will’s consistency with another note and a prior Will were evidence that the invalid Will expressed the Will-maker’s testamentary intention. This is similar to the situation that exists here. This supports a conclusion that the document expresses the deceased’s testamentary intentions.

Capacity

[14]              Given the deceased was very sick when he gave instructions, it is prudent to consider the issue of capacity. There is no apparent evidence that the deceased lacked testamentary capacity. Just over a week prior to his death, the deceased was confirmed to have testamentary capacity by his doctor via a letter dated 13 June 2023. Additionally, Ms Hume’s affidavit makes clear that when she conducted her house visit to receive instructions from the deceased, he seemed “fine” and was able to engage in small talk about his house, how long he had stayed there, and where he went to school in the area.

[15]The principles of testamentary capacity are summarised in Woodward v Smith

as:5

(2)It is essential to the exercise of such a power that a testator:

(i)understands the nature of the act and its effects; and also the

4      Re Wilson [2023] NZHC 276.

5      Woodward v Smith [2009] NZCA 215 at [19], quoting Banks v Goodfellow (1870) LR 5 QB 549 at 565-568.

extent of the property of which he is disposing;

(ii)is able to comprehend and appreciate the claims to which he ought to give effect;

(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

[16]              There is no indication that the deceased lacked any of these requirements. I therefore consider that the deceased had testamentary capacity at the time of providing instruction to Ms Hume.

Procedure

[17]              The application for the Will document to be validated has been submitted on a without notice basis. The applicant’s affidavits make clear that the deceased was widowed and was not in any de facto relationships when he died, and was survived by four children, namely the applicant, Michael Pero Larnach, Marie Rachel Jensen and Joseph Neil Sutton. The lack of any further children is confirmed by a letter from the Registrar of Births Death’s and Marriages, which is annexed to Ms Hume’s supplementary affidavit and marked “E”.

[18]              The deceased’s children, who are all the persons who might be affected by the Will being validated, have all consented to the order declaring the 2023 document to be a valid Will. In Re Feron, the Court held that where all persons who may be affected by the new Will had consented to the changes, this favoured proceeding on a without notice basis.6 I have come to the same conclusion in this case. Accordingly, I grant leave for the application to proceed without notice.

Outcome

[19]The 2023 document is declared to be the deceased’s valid Will.

6      Re Feron, above n 1, at [7] and [24]–[25].

[20]              An order is made confirming that the application is properly filed on a without notice basis.

[21]The costs of and incidental to this application are to be paid out of the estate.

Churchman J

Solicitors:

J C Gwilliam, Upper Hutt for Applicant