Estate of McVicar - [2013] NZHC 2201

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001296 [2013] NZHC 2201

IN THE MATTER

AND
OF S 14 OF THE WILLS ACT 2007

IN THE MATTER

OF THE ESTATE OF JANINE MARGARET MCVICAR

DEBRA JOWSEY AND JOHN BRUCE ABBOTT

Applicants

Hearing:	28 August 2013
Appearances:	D M Lester and A M Montgomery Lee for Applicants
Judgment:	28 August 2013

JUDGMENT OF D GENDALL J

[1] Before the Court is an application by the applicants seeking a declaration pursuant to s 14 of the Wills Act 2007 declaring a will invalid. The application is supported by an affidavit from the first-named applicant, Debra Jowsey (Ms Jowsey), together with a detailed affidavit from the deceased’s solicitor. A further affidavit from that solicitor is also provided.

[2] The application has been served upon the deceased’s widower Mr Brian McVicar (Mr McVicar), and his solicitors have confirmed in writing that Mr McVicar will not oppose the present application.

ESTATE OF MCVICAR [2013] NZHC 2201 [28 August 2013]

Background facts

[3] On 30 November 2010 the deceased met first with her solicitor, Ms Tait, for the purposes of discussing the implications of a possible separation from her husband, Mr McVicar. Ms Tait deposes that at that point the deceased and her husband, although not separated, had been experiencing marital difficulties. She opened two files for the deceased, one entitled “Relationship Property” and the other entitled “Will”.

[4] Instructions were given to Ms Tait for the preparation of a new will and that will, Ms Tait says, was drafted in accordance with her instructions. The draft will was emailed to the deceased on 1 December 2010.

[5] On 2 December 2010 the deceased, through her friend, Ms Jowsey, emailed to Ms Tait comments with respect to the will. She noted that there were a few changes to be made which were not particularly consequential. The changes were:

(a)Her first-named trustee, Ms Jowsey, was described in the will as her “sister”, whereas she was her “friend” and this was to be altered.

(b)The deceased’s children were to divide antique tea sets that came from the deceased’s mother between themselves; and

(c)The Camry motor vehicle given to the deceased by her father was to go to her son, Ben.

[6] Ms Tait deposes that the will was altered to effect these changes and on 8 December 2010 an email was sent to the deceased through her friend advising that the will was ready for her to sign.

[7] So far as Ms Tait, her solicitor, was concerned, little then happened into the New Year. There was then significant disruption which occurred in the Canterbury region with the February 2011 earthquakes.

[8] In the meantime the deceased, in her own handwriting, had made the alterations noted at [5] above to the original will forwarded to her by Ms Tait as outlined at paragraph [4] above. On 3 January 2011, those alterations were initialled by the deceased who then signed this will with her signature witnessed by her…

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: [2013] NZHC 2201
Decision Date: 28 August 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the Estate of McVicar case involved an application by Debra Jowsey and John Bruce Abbott, seeking a declaration under the Wills Act 2007 that the will of Janine Margaret McVicar was invalid. The deceased, who had separated from her husband, Brian McVicar, had drafted a new will on 3 January 2011, but it was witnessed by only one person, Ms Jowsey, rather than the required two. The central legal issue before the court was whether the will, despite its formal defect, could still be deemed valid if it expressed the deceased's testamentary intentions.

The court examined the circumstances surrounding the drafting and execution of the will. The deceased had discussed the will with her solicitor, who prepared a draft will on 1 December 2010. After receiving the draft, the deceased made handwritten changes to it and signed the revised version on 3 January 2011. The court considered the evidence provided, including affidavits from the deceased's solicitor and Ms Jowsey, which indicated that the will reflected the deceased's wishes. The court concluded that the will did indeed express the deceased's testamentary intentions and that this was more critical than the procedural defect of having only one witness.

The court ruled in favour of the applicants, finding that the will dated 3 January 2011 was the valid last will and testament of the deceased, despite the irregularity in the witnessing process. The court’s decision was influenced by the robust approach to interpreting the Wills Act 2007, which prioritizes the substance of the deceased's intentions over strict formalities. Consequently, the court declared the will valid, despite its procedural shortcomings.

The court's final order declared the will dated 3 January 2011, executed by Janine Margaret McVicar, to be her valid last will and testament, despite the irregularity in the witnessing process.

Orders