Estate of McRae

[2023] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-019

[2023] NZHC 92

UNDER	section 14 of the Wills Act 2007 and Part 19 of the High Court Rules 2016
IN THE MATTER OF	The estate of Leonard Martyn McRae, late of Paeroa, Deceased

On the papers:
Counsel:	P Cornegé for Applicant
Judgment:	3 February 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1]    The applicant has applied for an order under s 14 of the Wills Act 2007 declaring a document to be the valid Will of Leonard Martyn McRae (the deceased).

[2]    The application is made by way of originating application without notice and is supported by affidavits from the applicant and each of the deceased’s seven children.

Background

[3]    The deceased died without making a valid Will but left two relevant documents: firstly, a document prepared in early 2021 by filling in a “Will kit”; and secondly, a draft Will prepared by a solicitor on the deceased’s instructions in July 2001. Both documents are similar in content. Both nominate the applicant, who is the deceased’s widow, as executor and principal beneficiary.

ESTATE OF L M MCRAE [2023] NZHC 92 [3 February 2023]

[4]    The 2001 document bequeaths to the deceased’s seven children as tenants in common in equal shares all his interest in land described as “Whangamata 4D1C1A Block Certificate of Title 10A/1345”, with the balance of the estate going to the applicant provided she survived the deceased for a period of seven days.

[5]    The Will kit document appointed the applicant and the deceased’s daughter, Jacqueline McRae-Tarei, as executors, bequeathed the deceased’s house and car to the applicant, his land at Whangamata to his seven children, and his watches and coins to his grandson, Jahnui Hoera McRae. His residuary estate was bequeathed to the applicant.

[6]    The deceased passed away on 24 September 2021 without ever signing either the draft Will or Will kit documents.

[7]    In accordance with the contents of the affidavits of the applicant and the deceased’s children, it appears that the deceased failed to properly execute either document because he simply did not prioritise it.

[8]    All of the affidavits filed in support of the application confirmed that the deponents believed that the Will kit document evidenced the deceased’s intentions as at the date of his death.

The law

[9]    Under s 14 of the Wills Act 2007, where a document appears to be a Will but does not comply with s 11, the Court may make an order declaring the document a valid Will if it is satisfied that the document expresses the deceased’s testamentary intentions.

[10]Under s 14(3), the Court make consider:

(a)the document;

(b)evidence on the signing and witnessing of the document;

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

[11]   The issue for determination in this case is whether the Will kit document expresses the deceased’s testamentary intentions. This requires a consideration of the factors set out in s 14(3) and summarised above.1

[12]   One of the relevant inquiries is for the Court to ascertain why the deceased had not signed the document which is said to be his final Will.2

Analysis

[13]   On the basis of the affidavit evidence, I am satisfied that the reason why the defendant did not execute the Will kit document is because he did not prioritise it. I am also satisfied that it reflects his testamentary intentions. Its contents are very similar to the 2001 draft Will, and also reflect what the applicant and deceased’s children depose were his consistent verbally expressed intentions.

[14]   A separate issue is whether it is appropriate for this application to proceed on a without notice basis. I am satisfied that all those potentially affected by the making of an order declaring the Will kit document a valid Will, have agreed to that course, having been notified of the application. There are no other people who, in the interests of justice, require notification.

Outcome

[15]I make the following orders:

(a)the request to proceed on a without notice basis is granted;

(b)the application under s 19 of the Administration Act to declare the “Will kit” document a valid Will is granted; and

1      See Re Campbell (Deceased) [2014] 3 NZLR 306 at [15].

2      See Re Estate of Hickford (Deceased) HC Napier CIV-2009-441-369, 13 August 2009.

(c)costs in respect of this application are fixed on a 2B basis payable by the estate of the deceased.

Churchman J

Solicitors:
Woodward Law Offices, Lower Hutt for Applicant