Estate of Mitchell
[2020] NZHC 2379
•11 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-928
[2020] NZHC 2379
UNDER Part 19 of the High Court Rules and s 14 of the Wills Act 2007 IN THE MATTER
of an application for an order that the unsigned will of ANDREW PAUL MITCHELL be declared valid
APPLICATION BY
MARGARET LINDSAY MITCHELL
Applicant
Hearing: 10 September 2020 Appearances:
K T Glover (on instructions for J M Glover) for the Applicant
Judgment:
11 September 2020
JUDGMENT OF GAULT J
This judgment was delivered by me on 11 September 2020 at 4:45 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms J M Glover, Barrister, Auckland
Ms G Gill (applicant’s instructing solicitor), Solicitor, Auckland
RE ESTATE OF ANDREW PAUL MITCHELL [2020] NZHC 2379 [11 September 2020]
[1] The applicant, Mrs Mitchell, applies for an order declaring that the unsigned will of her late husband, Mr Andrew Paul Mitchell, drafted on or about 17 July 2014 is valid.
[2] The application is unopposed. Mr Mitchell’s sister, Ms Whinnen, was appointed litigation guardian for the Mitchell’s nine year old son, Stuart. She has advised that she fully supports the application.
Factual background
[3] In April 2014 Mr and Mrs Mitchell instructed solicitors to prepare draft mirror wills for them. They advised the legal executive, Ms Law, that they wanted their wills to be in the same terms. Both wills should provide that upon the death of the first of them the survivor would be gifted the deceased’s estate. In the event of the death of the survivor of them, then the estate would pass to their only child, Stuart. Ms Law raised questions regarding what should happen if both parents or all three family members died. She left matters on the basis that they would get back to her with the answers to those questions.
[4] Following email reminders, Mrs Mitchell sent a response on 8 July 2014, apologising for and explaining the delay. Mrs Mitchell also said “Thank you for persevering with our wills. It will be nice to get something official and complete.” She then said they were looking to take out life insurance too, “in which case 50 per cent will go to the surviving partner and 50 per cent split to the remaining family”.
[5] Following this, Ms Law drafted mirror wills and sent them to Mr and Mrs Mitchell. The only potential outstanding matter in the draft wills at that stage was the possible life insurance policies. This was separately addressed by applying for insurance in joint names.
[6] Ms Law received no response, despite reminders, and on 28 November 2014 she sent a final letter and invoice for her attendances. The account was paid in December 2014, but Ms Law did not hear from Mr or Mrs Mitchell regarding the completion of their wills.
[7] In July 2017 Mr Mitchell was diagnosed with pneumonia and admitted to Waikato Hospital for one night. Nine days later, after no significant improvement, he was readmitted to hospital on 28 July 2017. His condition worsened and he was admitted to intensive care. A week before his death on 22 August 2017 he was diagnosed with a type of autoimmune disease.
Court’s approach to declaring will valid
[8]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.
[9] The Court’s approach to s 14(2) was summarised by Mander J in Caird v Caird:1
[39] This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person's intentions.2 Where there is evidence of the person's testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.3
1 Caird v Caird [2018] NZHC 1605.
2 Re Estate of Wong [2014] NZHC 2554 at [24].
3 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].
[40] The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.4 However, it must be established on the balance of probabilities that the evidence as a whole, including evidence of the will-maker's statements and testamentary intentions, that the document expresses that person's intentions.5 The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.6 Any evidence which may assist to determine that question may be taken into account.7
[10] Where the Court is satisfied that the document represents the deceased person’s testamentary intentions, the Court retains a discretion but it is only residual in nature. Ordinarily – that is, absent good, even exceptional, reasons – the Court would declare the document valid.8
Discussion
[11] The threshold requirements in s 14(1) are made out. Mr Mitchell’s draft will clearly appears to be a will and was not signed and witnessed in accordance with s 11. The factual issue is whether the draft will expresses Mr Mitchell’s testamentary intentions.
[12] There is no reason to doubt that the draft expressed Mr Mitchell’s intention at the time of the meeting with Ms Law in April 2014 and when the draft was prepared in July 2014. The existence of the document in itself, before its contents are considered, is an indication that Mr Mitchell did not wish the disposition which would otherwise occur to take place. In addition, Mrs Mitchell says that based on their discussions, she believes that the unsigned will expressed Mr Mitchell’s testamentary intentions.
[13] But the length of time between the giving of the instructions and Mr Mitchell’s death is a factor that requires consideration in this case,9 looking at the explanation and the surrounding circumstances. A significant delay may be explained, as in
4 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].
5 Re Estate of Campbell at [16]; and Re Estate of Wong [2014] NZHC 2554 at [24].
6 Re Estate of Campbell at [16].
7 At [15] and [17].
8 Balchin v Hall [2016] NZHC 837 at [11]; Caird v Caird [2018] NZHC 1605 at [78]; and Holman v Oakley [2020] NZHC 2103 at [33].
9 Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772 at [23].
Re Cornelius, which also involved a three year delay.10 In that case, Allan J inferred that Mr Cornelius “never got around to executing it, although it did reflect his testamentary intentions”.11 Also, in Amundson v Raos,12 Moore J referred to the possibility that the person “was so busy or distracted that he or she simply did not get around to executing the will”, and similarly declared a will valid albeit the delay was much shorter.
[14] It is not suggested the Mitchells forgot about signing the wills. I accept Mrs Mitchell’s evidence that not finalising the wills was mainly due to being extremely busy with work and family commitments and not prioritising signing the wills over everything else because they did not expect anything serious to happen as they were both in good health. They were operating a business in Auckland while living in Ngāruawāhia. Mr Mitchell was commuting to Auckland, leaving home at 4:30 am, four to five days per week. In addition to that existing business, they were launching a new business. Mr Mitchell set aside one day a week to work at home on the new business. Mrs Mitchell said the combination of launching a new business while maintaining the existing business created an incredibly stressful, busy time. Mrs Mitchell also said they misunderstood the instructions about signing the wills and thought it was a more involved process than it really was. I also accept Mrs Mitchell’s evidence that they did not appreciate the urgency for Mr Mitchell to sign his will until it was too late.
[15] Mrs Mitchell believes that the unsigned will still expressed Mr Mitchell’s testamentary intentions at the time of his death, despite the time that had elapsed. Nothing significant had changed in terms of their circumstances.
[16] I accept that Mr Mitchell was so busy or distracted that he simply did not get around to executing the will. As Moore J said in Amundson v Raos, the fact that “an unsigned draft will exists is significant because it shows the deceased did not want intestacy law to dictate how their property was to be dealt with following their death”.13 The inference might be different if there were a valid prior will.
10 Re Cornelius [2012] NZHC 563.
11 At [18]. See also Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772 at [24] and [28].
12 Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772 at [27].
13 At [29].
[17] An added consistent factor is that Mrs Mitchell executed her will in materially the same terms shortly after Mr Mitchell’s death.
[18] I consider the contents of the draft will do not raise any question about testamentary intention. The mirror wills proposed are unremarkable in the case of a married couple with one young child. Its terms indicate that direct disposition to Stuart was intended only if Mrs Mitchell did not survive Mr Mitchell.
[19] For these reasons, I am satisfied that the draft will represents Mr Mitchell’s testamentary intentions.
[20] I also consider there is no good reason to refuse to exercise the discretion to declare the draft will valid under s 14.
Result
[21] I declare that the unsigned will of Mr Andrew Paul Mitchell drafted on or about 17 July 2014 is valid.
Gault J
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