Estate of McCarthy - [2019] NZHC 845

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-28

[2019] NZHC 845

UNDER the Wills Act 2007

IN THE MATTER

of an Application for Order Declaring document to be a valid Will

IN THE ESTATE

of VALERIE LYNN MCCARTHY

Deceased

On the papers

Appearances:

PJ Smith for Applicants

Judgment:

16 April 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 April 2019 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Estate of V L MCCARTHY v [2019] NZHC 845 [16 April 2019]

Background

[1]Valerie Lynn McCarthy died at Auckland on or about 16 January 2019.

[2] On 27 September 2016, Ms McCarthy attended the offices of Kelly Flavell Law Ltd (Kelly Flavell) to execute a will. Present to assist Ms McCarthy were Andrew Lin, one of Kelly Flavell’s staff solicitors, and Joy May Sorensen, a receptionist and legal assistant. Mr Lin and Ms Sorensen had earlier helped Ms McCarthy in drafting her will (the Will). In that document, Ms McCarthy sought to:

(a)Appoint her stepson, Martin McCarthy (Martin), and her daughter, Norma Ann Lee (Norma), as executors and trustees of the Will;

(b)Gift her son, Ian Jeffrey Lee, the sum of $5,000 as a gesture of goodwill; and

(c)Divide the balance of her estate into six equal shares to be held on trust for the following persons:

(i)Her stepdaughter, Penny Jablonski;

(ii)Martin;

(iii)Her stepdaughter, Mandy Underdown;

(iv)Norma;

(v)Her daughter, Melanie Patricia Lee; and

(vi)Her son, Matthew Robert Lee.

[3] Norma and Martin were given broad powers as trustees to manage the affairs of the six trusts.

Validity

[4] The requirements for a valid will are prescribed by s 11 of the Wills Act 2007 (the Act). It provides, so far as is relevant:

11 Requirements for validity of wills

(1)A will must be in writing .

(2)A will must be signed and witnessed as described in subsections (3) and (4).

(3)The will-maker must-

(a)sign the document; or

(b)direct another person to sign the document on his or her behalf in his or her presence.

(4)At least 2 witnesses must-

(a)be together in the will-maker's presence when the will maker-

(i)complies with subsection (3); or

(ii)acknowledges that-

(A)he or she signed the document earlier and that the signature on the document is his or her own; or

(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) each sign the document in the will-maker's presence.

[5] Mr Lin witnessed Ms McCarthy’s signing of the Will. He initialled the first two pages and signed as one of the witnesses on the last, attestation page while Ms McCarthy and Ms Sorensen were present.

[6] Ms Sorensen also sought to record her witnessing Ms McCarthy’s signing of the Will. She initialled the first two pages of the document, but her signature does not appear on the attestation page. In an affidavit dated 3 April…

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: [2019] NZHC 845
Decision Date: 16 April 2019

CaseChat Overview and Summary

In the Estate of Valerie Lynn McCarthy, the applicants, Martin McCarthy and Norma Ann Lee, sought a declaration from the High Court of New Zealand that a document signed by Ms McCarthy on 27 September 2016 was a valid will. Ms McCarthy died on or about 16 January 2019, leaving the will in question which was witnessed by Andrew Lin and Joy May Sorensen. The applicants sought the court's declaration of validity under s 14 of the Wills Act 2007, as the will did not comply with the statutory requirements for a valid will, specifically in that Ms Sorensen did not sign the attestation page.

The court needed to determine whether the statutory requirements for a valid will under s 11 of the Act were satisfied and whether, if not, the will expressed the deceased's testamentary intentions such that the court could exercise its discretion under s 14 to declare the will valid. The court found that while Ms McCarthy's will did not comply with the statutory requirements, the evidence demonstrated that Ms McCarthy intended to execute a valid will. The court accepted that Ms Sorensen's omission in not signing the attestation page was inadvertent and that the will expressed Ms McCarthy's testamentary intentions. The court held that it was appropriate for the proceeding to be commenced by way of an originating application and that service of the application was not necessary.

The court exercised its discretion under s 14 of the Act and declared that the document dated 27 September 2016, which is purported to be the will of the late Valerie Lynn McCarthy, is a valid will under the Wills Act 2007. The court also permitted the bringing of the application by way of an originating application and dispensed with service of the application.

Orders