Estate of Lion

[2024] NZHC 275

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-682

[2024] NZHC 275

IN THE MATTER OF

estate of MARTIN GRAHAM LION

BETWEEN

HELEN RUTH KIRKBY and FAY PEARL SAMPSON

Applicants

AND

RICHARD ALLAN JAMES MCKAY and LOUISE JANE MCKAY

Respondents

Hearing:	On the papers
Appearances:	J M Stringer for Applicants
Judgment:	22 February 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 February 2024 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re LION [2024] NZHC 275 [22 February 2024]

[1]    This is an application to validate a document dated 18 June 2023 (the will document) under s 14 of the Wills Act 2007, as the valid will of the deceased,  Martin Graham Lion.

Circumstances giving rise to the will document

[2]    Mr Lion died on 18 October 2023. He is survived by his partner of 18 years, Fay Pearl Sampson (Ms Sampson) and his sister, Helen Ruth Kirkby (Mrs Kirkby). Ms Samson and Mrs Kirkby are appointed jointly as the executors of Mr Lion’s estate under the will document.

[3]    Mr Lion had made an earlier will on 9 December 2001 (the 2001 will) in which he left his estate to his mother or, should she predecease him, to his sister and her two children, his nephew and niece. The 2001 will was made prior to Mr Lion commencing his relationship with Ms Sampson.

[4]    Mr Lion’s mother died on 28 September 2004. He became unwell around December 2022 but the cause when undiagnosed. It was only in mid 2023 that he was formally diagnosed with lymphoma cancer.

[5]    In the last months of his life, he told Ms Sampson that he wanted to update his will because he had an old out of date will. However, his health deteriorated further before he got around to doing that.

[6]    Ms Sampson deposes that it was on the second or third time that he went to hospital that he gave her a sealed envelope which was addressed to her and his sister, Mrs Kirkby. She was told not to open the envelope until he died. When she did open it, it contained the will document.

Content of the will document

[7]The will document carries out the functions of a will as follows:

(a)it is titled “Martin Graham Lion – Last Will and Intentions of my Estate”;

(b)it is dated 18 June 2023;

(c)it appoints Ms Sampson and Mrs Kirkby jointly as executors;

(d)it outlines an intention to revoke any previous will, acknowledging the existence of the 2001 will;

(e)it records Mr Lion’s assets and liabilities;

(f)it records his direction for his estate to be distributed as follows:

(i)“I wish my estate to be split 70%/30% …

(ii)I wish to leave 70% of my estate to Fay Pearl Sampson currently at 216b Sawyers Arms Road, Chch – Fay I hope it helps get you a warmer place – enjoy

(iii)I wish to leave 30% to  my  sister  Helen  Ruth  Kirkby  of  143 Hawthorden Road, [sic] Chch – Sis, this is to [sic] used in going on another trip/cruise sometime. Go spend and enjoy;” and

(g)it sets out his directions for his funeral, saying “I would like to be cremated and ashes scattered over my mum and dad’s grave”.

[8]    The will document does not comply with the formal requirements of a will because it was not signed in the presence of two witnesses. Mr Lion acknowledges this deficiency within the will document saying: “While I don’t have a [sic] independent witness, I am going into hospital tomorrow so I wish for my intentions to be known even if not quite “t’s” crossed or “I’s dotted”.

[9]    Ms Sampson and Mrs Kirkby give evidence of their belief that Mr Lion was the author of the will document because it is written in his usual writing style, signed with his usual signature and was provided in a sealed envelope to Ms Sampson by him in person.

The law

1. Section 14 of the Wills Act provides:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3)The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

[11]   As is set out above, the document meets the requirements of s 14(1). It appears to be a will as it is titled as Mr Lion’s last will and it carries out the essential functions of a will. The will document was not signed in the presence of two witnesses and therefore does not comply with s 11 of the Wills Act. The will document came into existence in Christchurch, New Zealand.

[12]   I am satisfied the will document expresses the deceased’s persons testamentary intentions and so meets the requirements of s 14(2). This is evidenced by both the content of the will document and by Mr Lion’s statements in the last months of his life where he acknowledged he needed to update his will and then providing the will document to Ms Sampson to be opened upon his death. Furthermore, I note the will reflects the desire in his earlier will to benefit his sister but takes into account the subsequent lengthy relationship with Ms Sampson and updates his will accordingly.

[13]   Being satisfied that the will document meets the definition of document, appears to be a will, does not comply with s 11 of the Wills Act and expresses the deceased’s testamentary intentions, I make an order validating the will document as the will of Martin Graham Lion.

[14]   For the avoidance of doubt, I also confirm the costs incidental to this proceeding should be met by the estate of the deceased.

Solicitors:
Hill Lee & Scott, Christchurch

Copy to:
J M Stringer, Barrister