Estate of McLauchlan

[2014] NZHC 1040

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-36787 [2014] NZHC 1040

IN THE MATTER

of section 14 of the Wills Act 2007

AND IN THE MATTER

of the estate of NANETTE LUCY MCLAUCHLAN

BETWEEN

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED as executor of the estate of NANETTE LUCY MCLAUCHLAN

Plaintiff

Hearing:	15 May 2014
Appearances:	C J Kelly for the Plaintiff
Judgment:	15 May 2014

JUDGMENT OF S E THOMAS J

Solicitors:

C J Kelly, Greg Kelly Law Limited, Wellington

MCLAUCHLAN (IN THE ESTATE OF) [2014] NZHC 1040 [15 May 2014]

[1]      This is an application pursuant to section 14 of the Wills Act 2007.   It concerns the estate of Nanette Lucy McLauchlan.

[2]      Miss McLauchlan died on the 12 January 2013.   She had made a will in

2004.

[3]      The application today however is that a will drafted but unsigned which was prepared in 2010 should be declared as her valid in accordance with section 14.

[4]      Comprehensive efforts have been made to deal with the position of those parties named in the 2004 will but adversely affected should the application succeed. In the most part they are various charities.  All of them have been served.  Two of them initially reserved their position pending receipt of further information.  Once that information was provided they confirmed no opposition to the application.

[5]      Aside from those charities a number of individuals were also affected by the application.

[6]      The circumstances surrounding the making of the document in 2010 are set out in two affidavits dated 4 July 2013 and 28 February 2014 by Coral Erkkila.

[7]      Miss Erkkila was employed as a client advisor for the New Zealand Guardian Trust Company and visited Miss McLauchlan on the 15 March 2010 at Onewa Lodge.   Miss Erkkila took her instructions for the preparation of a new will. Following that visit she prepared the will and sent it to Miss McLauchlan for review on the 25 March.  She telephoned Miss McLauchlan who confirmed she had read the draft will and it was in order for signing.  Miss Erkkila then attempted to arrange a time to see Miss McLauchlan but she was advised by the staff at Onewa Lodge that Miss McLauchlan was to unwell for a visit.  She made several unsuccessful attempts to arrange an appointment.   Miss Erkkila eventually visited Onewa Lodge on the

4 August 2011.  At that stage Miss McLauchlan’s health had deteriorated to the point where she was unable to sign the will.

[8]      Miss Erkkila has been able to assist the Court further by her affidavit dated

28 February 2014.   When she was re-organising her office she came across some hand written notes that Miss McLauchlan had provided to her and she has produced the original of those notes to the Court.  Miss Erkkila records in her affidavit that the notes are virtually identical to the draft will prepared by Miss Erkkila in 2010.

[9]      The Court in my assessment can take a great deal from those hand written notes.  It shows somebody clearly of mental capacity making detailed notes about her wishes.  In particular there is a list of her desires in terms of how her personal effects should be distributed.

[10]     The only person named in the 2004 will who does not take or whose estate does not take in the 2010 document is Gwenna McLauchlan.  Under the 2004 will the sum of $20,000 was left to her.   Evidence before the Court is that Gwenna McLauchlan died in 2008.   She is not named at all in the 2010 will.   It is fair to assume that Miss McLauchlan was aware of that at the time she gave her instructions in 2010 and that is the reason why Gwenna McLauchlan or her estate is not included in the 2010 document.

[11]     I turn to consider the provisions of section 14 of the Will Act 2007.

[12]     I am satisfied having considered the 2010 document that it appears to be a will.   It is clearly drafted as such.   That was the intention.   Indeed the specific purpose for which Miss Erkkila visited Miss McLauchlan in 2010 was so that she could make a new will.

[13]     The document does not comply with the Wills Act because it is not signed or witnessed. It came into existence in New Zealand.

[14]     Pursuant to s14(2), I may make an order declaring the document valid if satisfied that it expresses the deceased person’s wishes testamentary intentions.

[15]     Having review all the material and considered the memorandum of counsel I

am so satisfied.

[16]     I say that given the affidavit evidence of Miss Erkkila supported substantially as it is by the discovered hand written notes of Miss McLauchlan.

[17]     I consider too the reason why the document was not executed as a will and I have referred to that already.  I am satisfied there is no evidence to suggest that Miss McLauchlan changed her mind.   It was simply her ill health which prevented the document being executed.   That the draft accorded with her instructions was confirmed in the telephone conversation which Miss Erkkila held with her.

[18]     For  those  reasons  I am  satisfied  that  I should  grant  the  application  and declare the document prepared in 2010 to be the valid will of Nanette Lucy McLauchlan.

[19]     Two other points  should be made:

(1)There is reference in the draft to the disposition of personal items in accordance with wishes made known during her lifetime.  The hand written notes Miss Erkkila located in her office clearly constitutes a list of such wishes.

(2)The desire is expressed in the 2004 will and in the hand written notes of 2010 that Miss McLauchlan’s sister, Olive Burt, be paid the costs associated with attending the funeral.   Obviously that event, the funeral, has passed.  Although the specific provision is not included in the 2010 will I have no doubt that the family will be guided by the

wishes of Miss McLauchlan.

Thomas J