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.

1. 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 I examine each of the four requirements of s 14 below.2

[7]    There must be a document. Section 6 of the Wills Act defines a document as “any material on which there is writing”.3 This has been interpreted widely to extend, among other things, to electronic records.4 In this case, the document requirement is satisfied by the eight pages of handwriting contained in an A5 notebook, supported by Ms Duong’s evidence that she took photographs of those notes on her mobile phone at the time when Mr Brett Marsh showed her the notes and explained them to her. After his death, the A5 notebook containing those original pages was located.

[8]    The document must appear to be a will. This requirement can be problematic if the document only records preliminary intentions. That type of problem does not arise on these facts. The notes begin with the words “To whom it may concern. This is the last will & testament of Brett Cedric Bateson Marsh born 3rd February 1969, New Plymouth, New Zealand”. The content that follows is drafted in the form of clauses of a will. The last page ends with the words “This concludes my wishes. Thank you Robert Bell for administering this will. You have known me all my life and our families have been close friends. Signed [signature], Brett Cedric Bateson Marsh”. Although it appears to be dated under the signature “January 11th 2020” (with an error in the year), it is clear from the surrounding pages of the notebook that the date was in fact 11 January 2022.

1      Dr L Breach Nevill’s Law of Trust, Wills and Administration (14th ed, LexisNexis NZ Ltd, Wellington, 2023) at [13.5].

2      Dr L Breach Nevill’s Law of Trust, Wills and Administration, above n 1.

3      The term “writing” is in turn defined by s 13 of the Legislation Act 2019.

4      Re Estate of Drury [2018] NZHC 230, [2018] NZAR 370; and Blackwell v Hollings [2014] NZHC 667.

[9]    The affidavit of  Ms  Duong  exhibits  handwritten  explanatory  letters  to  Mr Samuel Marsh, Mr Bell and Ms Duong contained in the same notebook on the pages immediately following the will, all dated 11 January 2022. It also exhibits a text message from Mr Brett Marsh to her on 30 May 2023, which explains the key terms that are set out in the handwritten document and states, “I have consulted my lawyer today” and later on “My will is my personal document and my lawyer retains the signed original document in security”. Ms Duong has searched for information about the lawyer to whom he refers, and efforts have been made to locate any recently executed will by placing a notice in the February 2024 edition of Law Talk. Despite these steps, no formal version has been located. Regardless, these matters substantiate Mr Brett Marsh’s intention and belief that he had prepared a will on the terms set out in the handwritten document.

[10]   The document must not comply with s 11. Section 11 of the Wills Act sets out the required formalities for a valid will. Those are not satisfied in this case, because the signature has not been witnessed as required by s 11(4).

[11]   The fourth requirement is that the Court must be satisfied that the document expresses the deceased’s testamentary intentions. I am satisfied that the handwritten document does express Mr Brett Marsh’s testamentary intentions on the facts as explained in the supporting affidavit evidence. The earlier formal wills were written at a time well before Mr Brett Marsh lived with Ms Duong and had their four-year-old daughter. The handwritten will was made on 11 January 2022 immediately before he underwent a major heart surgery. The handwritten will and the explanations provided by Mr Brett Marsh to Ms Duong and his son give reasons why he considered those outcomes appropriate in the event of his death. He was explicit that he had formed those testamentary intentions on a final basis, after carefully considering what changes were appropriate given his new family circumstances.

[12]   As referred to above, it is possible that a formally executed version of this will might be held by a lawyer who has not seen the advertising in Law Talk. Whether that is the case or not, I am satisfied that any formal version is likely to record these handwritten terms, and this is the best evidence of those terms.

[13]   I understand from the evidence that Mr  Brett  Marsh  was  domiciled  in  New Zealand at the time he died. Although Mr Brett Marsh passed away while in Vietnam on 2 August 2023, that was during a temporary visit. The jurisdictional requirement in s 14 is satisfied, because the will came into existence in New Zealand (it was written while he was in this country). The Vietnam apartment was used as a holiday home and had potential for renting out to generate income. The court has jurisdiction to deal with questions concerning foreign land arising in the context of administration — this being a recognised exception to the Moçambique rule that excludes the court’s jurisdiction over foreign land.5

[14]   The handwritten will does not list any other beneficiaries beyond the parties that signed the joint memorandum dated 24 April 2024. The earlier will named only Mr Samuel Marsh as the beneficiary, so all necessary parties are aware of and support this originating application and have consented to it being determined on the papers. Mr Bell records at the end of his affidavit that Mr Samuel Marsh consents to validation of the handwritten document as the will, and for admission of that will to probate. However, it seems that Mr Samuel Marsh reserves his rights (as acknowledged by Mr Bell) as to the appropriate ultimate estate distribution, which might be the subject of negotiations with a view to reaching an agreed outcome.

Result

[15]For all of the above reasons, by consent I make orders:

(a)declaring the handwritten will dated 11 January 2022 to be valid as the last will of the deceased, Brett Cedric Bateson Marsh; and

(b)that probate of the last will of Brett Cedric Bateson Marsh is to issue to Robert John McIntyre Bell, named as executor in the will.

O’Gorman J

5      Maria Hook and Jack Wass (eds) The Conflict of Laws in New Zealand (online ed, LexisNexis) at [8.29].