Estate of McDonald

[2016] NZHC 1577

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-494 [2016] NZHC 1577

IN THE MATTER OF

the Wills Act 2007

IN THE ESTATE OF

IAN ALISTER McDONALD

DIANE MCDONALD, MARK ALISTER MCDONALD, LAUREN KATE MCDONALD AND FRASER HENRY MCDONALD

Applicants

On the papers
Counsel:	S McKenzie for the applicants
Judgment:	12 July 2016

JUDGMENT OF MALLON J

[1]      The applicants apply for an order declaring valid a draft will of the deceased, Ian McDonald, made in 2014.   The applicants are the deceased’s wife and their children.  The application is supported by an affidavit from the deceased’s wife and from the lawyer who prepared the draft will for the deceased.

[2]      The deceased died on 17 March 2016.  He left a will dated 10 April 2010. This will appointed his wife as executor and trustee and left his entire estate to her. On or about 1 January 2013 the deceased and his wife separated.  On or about 19

June 2014 the deceased and his wife entered into a separation agreement settling all matters relating to their property.  On or about 26 June 2014 the deceased instructed his lawyer at the time to prepare a new will which would divide his estate equally to the deceased’s three children.

[3]      The lawyer prepared a will in accordance with these instructions.  He advised the deceased by telephone that he had done so and sought his instructions as to who

Estate of Ian Alister McDonald [2016] NZHC 1577 [12 July 2016]

was to be appointed as executor and trustee and to make an appointment for the deceased to sign his will.  The deceased wanted to think about who he wanted to appoint and said he would come back to the lawyer about that.  The deceased did not make any further contact with his lawyer.  The lawyer made a number of attempts to contact the deceased but received no reply.  The deceased had by this time changed his job and contact details.  He had also instructed a new lawyer in relation to other matters.

[4]      The deceased’s wife says that she and the deceased had various conversations in the months prior to his death.  He confirmed to her that he intended to divide his estate equally amongst his three children.   Despite enquiries, no signed will after

10 April 2010 has been found.

[5]      The deceased’s wife has taken independent legal advice and consents to the

2014 draft will being declared valid.  If such an order is not made she will apply for probate of the 10 April 2010 will and give the estate equally to their three children.

[6]      I am satisfied on the evidence, in accordance with s 14 of the Wills Act 2007, that the draft will is a document which appears to be a will, it does not comply with the requirements of s 11 of the Act, and it expresses the deceased’s testamentary intentions at the time of the instructions and in the months preceding his death. Accordingly I make an order validating the 2014 draft will of the deceased, a copy of which is annexed to the affidavit of Diane McDonald and marked with the letter “F”.

Mallon J