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 friend, Ms Jowsey, who also included her signature as witness at the foot of the will. The will was dated 3 January 2011. Unfortunately, however, it was witnessed only by Ms Jowsey and not by a second witness.

[9]   In  the  meantime  the  marriage  and  relationship  of  the  deceased  and Mr McVicar had come to  an  end  (either  at  the  end  of  2010  or  early  2011). Ms Jowsey has deposed in her 24 May 2013 affidavit filed herein, at paragraph 3, that in late December 2010 Mr McVicar left the family home and confirmed he was going to live permanently with “the other woman in his life” at that point.

[10] Subsequently, from the affidavit evidence which is before the Court from Ms Tait, it is clear that the deceased and Mr McVicar did separate and discussions took place during 2011 concerning that aspect.

[11] It seems at this time that the deceased had overlooked issues concerning her will and presumed that as she had signed the document in early 2011 this matter was properly attended to.

[12]    Subsequently, on 25 January 2012, the deceased died.

The law

[13]    Section 14 of the Wills Act 2007 provides:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3)The court may consider—

(a)the document; and

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

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

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

[14]     Insofar as the present case is concerned the formal requirements of s 14 are:

(a)a document must exist that appears to be a will; and

(b)I need to be satisfied that the document must express the deceased’s testamentary intentions.

[15]     These matters were considered in the decision of Whata J in Re Feron1  as follows:

[11] In Re Estate of Murray1 MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14 (2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

[12] This robust approach has also been applied in various Australian authorities dealing with difficult fact situations, but where the clear testamentary intentions of the deceased are deemed to outweigh any defects in form.2 By contrast, where the Courts have not been satisfied of testamentary intentions, the Courts have refused to accept the notes or draft will.3

1            Re Estate of Murray HC Masterton CIV 2011-435-000178, 20 December 2011.

1       Re Feron [2012] 2 NZLR 551 at 553.

2Estate of Blakely (1983) 32 SASR 473; Estate of TLB (2005) 94 SASR 450; In the Matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1; Ryan v Kazacos (2001) 159 FLR 452.

3Baumanis v Praulin (1980) 25 SASR 423; Estate of Schwartzkopff [2006] 94 SASR 465; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535. See also Nicola Peart “Where there is a will, there is a way – a new Wills Act for New Zealand” (2007) 15 Waikato Law Review 26.

My decision

[16] As a starting point here, I am satisfied that the draft will dated 3 January 2011 itself satisfies the requirements for a will in terms of s 8(1), it has been signed by the deceased, it bears the signature of one witness but it has not been witnessed by a second person. As such I am satisfied that it truly represents the testamentary intention of the deceased and, in this case, this clearly outweighs the defect in form by the absence of a second witness.

[17]    In my view this is clearly reinforced by an email from the deceased dated 2 December 2010 responding to the original draft will sent to her by Ms Tait. This confirms what the deceased wanted and was carried forward by her in the 3 January 2011 will in her own handwriting.

[18] The additional evidence before the Court from Ms Jowsey also confirms that the deceased was quite adamant that the 3 January 2011 will she signed was precisely what she wanted. The marital difficulties that had prompted the drafting of this new will were unchanged at the time and subsequently, and this had been reinforced earlier in late December 2010 when Mr McVicar left the family home to live with the “other woman”.

[19] In this case I note also that attempts have been made to ascertain whether the deceased may have left a subsequent or prior will other than this 3 January 2011 draft will. These attempts made through the Law Society have turned up the only other will which was known to be made by the deceased which was dated some 20 years earlier on 27 March 1990 when no doubt the deceased’s marital position was rather different.

[20]    In conclusion and for all the reasons I have noted above, I find that the 3 January 2011 draft will signed by the deceased does clearly evince the intentions of

the deceased. These outweigh any defects in form relating to informality and the absence of a second attesting witness here and, in conducting a robust consideration of this document in the light of s 14 of the Wills Act 2007, the application before me which is unopposed by the only person who would be detrimentally affected, Mr McVicar, must succeed.

Orders

[21]  An order is now made declaring that the will dated 3 January 2011 executed by the deceased, Janine Margaret McVicar, but irregularly witnessed is the valid last will and testament of the deceased.

...................................................

D Gendall J

Solicitors:
Dale Lester, Christchurch