Estate of McDonald

[2024] NZHC 3651

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000663

[2024] NZHC 3651

IN THE MATTER OF

Section 14 of the Wills Act 2007

IN THE MATTER OF

the estate of MURRAY JOHN MCDONALD of Dannevirke in New Zealand, Logging Contractor (deceased)

IN THE MATTER

of an application by PAMELA SUE MACKIE, Dannevirke, Director Applicant

IN THE ESTATE OF

MURRAY JOHN MCDONALD of

Dannevirke in New Zealand, Logging Contractor (deceased)

Hearing:	On the papers
Counsel:	R A van Duin for Applicant
Judgment:	3 December 2024

JUDGMENT OF LA HOOD J

[1]                 Pamela Mackie applies for an order that a draft will of her long-term de facto partner, Murray McDonald, be declared a valid will under s 14 of the Wills Act 2007 (the Act).

[2]                 When the matter came before Grice and McQueen JJ on previous occasions, directions were made for the filing of further evidence to support the application. In particular, further evidence was required to satisfy the Court of the basis on which it is said that the draft will expresses Mr McDonald’s testamentary intentions. It was

RE ESTATE OF M J MCDONALD [2024] NZHC 3651 [3 December 2024]

suggested that an affidavit from the lawyer, Mr Robert van Duin, who assisted with the drafting of the wills, may assist. An affidavit dated 20 November 2024 has now been filed by Mr van Duin.

The evidence

[3]                 Mr McDonald died on 9 August 2024. Ms Mackie was his de facto partner for 34 years.

[4]                 Mr van Duin deposes that he assisted Ms Mackie and Mr McDonald with the drafting of their wills after he assisted them with the purchase of their property in September 2021. At the conclusion of that purchase, he asked them whether they had wills and if so, whether they wished to update them. In January 2024, Ms Mackie dropped off draft wills for both her and Mr McDonald, which had been prepared by another law firm. Mr van Duin was instructed to provide advice on the draft wills and what would be required to have them completed. Mr van Duin has attached the draft wills to his affidavit and explains that the marks on them were made so that he could discuss certain parts of them with Ms Mackie and Mr McDonald. This included highlighting the substitute executors as he wanted to confirm they were their children. He crossed out what he considered irrelevant clauses for discussion.

[5]                 He deposes that he discussed the wills with Mr McDonald and Ms Mackie over the telephone. They confirmed the substitute executors were their children, and that their intentions remained the same in that they would each inherit the whole of the other’s estate, but should both of them have died, the residue would fall equally between their surviving children and subsequently to their grandchildren at age 25.

[6]                 He offered to redraft the wills and make an appointment for them to come into the office and sign them, but at the conclusion of the discussion Mr McDonald and Ms Mackie said they were not ready to complete the wills yet and advised they would get back to him when they were ready to do so.

[7]                 Ms Mackie’s affidavit  confirms  that  she  and  Mr  McDonald  instructed  Mr van Duin in respect of draft wills prepared by another law firm, and dropped off the draft wills to his firm for this purpose in 2024. Her and Mr McDonald’s joint

intentions accorded with the draft wills, namely for the surviving spouse to inherit their respective estates, and should they both die, for their estates to pass to their respective children in equal shares. And should any of their children die, then their entitlements would pass to their respective children. She says that they simply forgot to instruct Mr van Duin to finalise their wills prior to his passing, but Mr McDonald did not express to her or their family any change in his testamentary intentions before he died.

[8]                 Ms Mackie annexes to her affidavit the written consent of all people affected by Mr McDonald’s estate confirming they consent to the application to validate the draft will. This includes Daniel McDonald (Mr McDonald’s son); Melanie Jones, (Mr McDonald’s daughter); Amber Davis (Mr McDonald’s stepdaughter); and Candice Hansen (Mr McDonald’s stepdaughter).

Relevant law

[9]I gratefully adopt McQueen J’s summary of the relevant principles as follows:1

This Court has the power to validate a document that appears to be a will, does not comply with s 11 of the Act and  came  into  existence  in  or  out  of New Zealand, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

As explained in Re Beaumont, great care must be taken in determining whether a draft will is genuinely an expression of the deceased’s intention, given that validation of a will results in a final distribution of the estate in accordance with the document under consideration, affecting the rights and interests of those who would inherit if the document is not validated.

In making its determination as to whether to validate the document, the Court may consider the document, evidence on the signing and witnessing of the document, evidence on the deceased person’s testamentary intentions, and evidence of statements made by the deceased person.

Decision

[10]              I am satisfied that the draft will is a document that appears to be a will and does not comply with s 11 of the Act, as it was not signed and witnessed as required. I am satisfied that the draft will came into existence in New Zealand.

1      Estate of M J McDonald HC Wellington CIV-2024-485-663, 11 November 2024 at [11]–[12] (Minute of McQueen J) (footnotes omitted).

[11]              I am satisfied on the combined evidence of Mr van Duin and Ms Mackie that the draft will expresses Mr McDonald’s testamentary wishes. Some time after January 2024, there was a telephone discussion between Mr van Duin, Mr McDonald and  Ms Mackie during which they confirmed the draft wills reflected their testamentary wishes. Ms Mackie confirms that the reason why the will was not executed was due to oversight and that Mr McDonald did not express any change to his testamentary wishes prior to his passing.

[12]              All those affected by Mr McDonald’s estate, namely his children and stepchildren, have consented to the validation of the will.

[13]              In all these circumstances, I am satisfied that it is appropriate to grant the application for validation of the draft will.

[14]              I therefore make an order validating the draft will annexed as Exhibit A to  Mr van Duin’s affidavit.

La Hood J

Solicitors:
Dorrington Poole, Dannevirke for Applicant