Estate of Marsh - [2024] NZHC 1073

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-904

[2024] NZHC 1073

UNDER Section 14 of the Wills Act 2007

IN THE MATTER OF

the Estate of

BRETT CEDRIC BATESON MARSH

BY

ROBERT JOHN MCINTYRE BELL

Applicant

Hearing: On the papers

Counsel:

J C LaHatte and J C R Cooper for Applicant K O’Donnell for Mr Samuel Marsh

B Read for Ms Duong and Ms Marsh (a minor child)

Judgment:

3 May 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 3 May 2024 at 12 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
Ord Legal, Wellington
J C LaHatte, Barrister, Wellington

Re ESTATE OF B C B MARSH [2024] NZHC 1073 (3 May 2024)

[1] This is an application under s 14 of the Wills Act 2007 seeking an order to declare a handwritten document valid as the last will of Brett Cedric Bateson Marsh. The application is supported by an affidavit of Robert John McIntyre Bell who is named as the executor in the handwritten document and is a longstanding friend of the deceased, over a period of some 54 years. It is also supported by an affidavit of Thi Lieu (Lucy) Duong, the de facto partner of Mr Brett Marsh at the time he died. At that time, Mr Brett Marsh had a son named Samuel Marsh (who is now an adult) and a four-year-old daughter (Ms Duong’s daughter).

[2] The originating application is supported by a joint memorandum signed by counsel on behalf of Mr Bell as applicant, counsel acting for Mr Samuel Marsh, and counsel acting for Ms Duong and her four-year-old daughter.

[3] The handwritten document is eight pages long and was signed by Mr Brett Marsh on 11 January 2022 but was not witnessed. That was the day before he underwent major heart surgery. It is common ground that the handwriting and signature is that of Mr Brett Marsh.

[4] Two prior executed wills have been located, from 1996 and 2004 respectively. The latter one dated 6 July 2004 was made 15 years before Mr Brett Marsh met Ms Duong and had a child with her.

[5] The High Court may declare a will valid under s 14 of the Wills Act. That provision provides as follows:

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.

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.

[6] The validation of wills is a regular business of the High Court.1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 1073
Decision Date: 3 May 2024

CaseChat Overview and Summary

The case involves an application under section 14 of the Wills Act 2007, seeking to declare a handwritten document as the last will of Brett Cedric Bateson Marsh. The applicant, Robert John McIntyre Bell, claims to be the executor named in the document and has been a friend of the deceased for over 54 years. The application is supported by affidavits from Bell, Thi Lieu (Lucy) Duong, the de facto partner of Mr Marsh at the time of his death, and others. Mr Marsh had a son, Samuel Marsh, and a daughter with Ms Duong. The document in question is an eight-page handwritten note signed by Mr Marsh on 11 January 2022, the day before he underwent major heart surgery. It was not witnessed, which is a requirement under section 11 of the Wills Act.

The court was required to decide whether the handwritten document could be declared valid as Mr Marsh's last will under section 14 of the Wills Act. The court examined whether the document satisfied the requirements of that section. The court found that the document was indeed a will, as it was signed by Mr Marsh and contained clauses in the form of a will. The document did not comply with the formalities required by section 11 of the Wills Act, as it was not witnessed. The court was also required to determine whether it was satisfied that the document expressed Mr Marsh's testamentary intentions. The court concluded that it was satisfied that the document did indeed express Mr Marsh's testamentary intentions based on the affidavit evidence and other supporting materials.

The court made orders declaring the handwritten document to be valid as the last will of Brett Cedric Bateson Marsh and that probate of the will is to issue to Robert John McIntyre Bell, who is named as executor in the will.

Orders