Estate of Mitchell - [2020] NZHC 2379

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…

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: [2020] NZHC 2379
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the applicant, Mrs Mitchell, sought an order to declare the unsigned will of her late husband, Mr Mitchell, drafted around 17 July 2014, as valid. The application was unopposed, and the respondent, Mr Mitchell’s sister, fully supported the application as litigation guardian for their son, Stuart. The court needed to determine whether the unsigned will expressed Mr Mitchell’s testamentary intentions in accordance with the Wills Act 2007.

The court considered the draft will, the circumstances surrounding its creation, and Mrs Mitchell’s evidence. It was established that the draft appeared to be a will and did not comply with the formal requirements for execution. However, the court found that the existence of the draft will indicated Mr Mitchell did not wish the disposition that would otherwise occur to take place. The court accepted Mrs Mitchell’s evidence that they were extremely busy with work and family commitments, leading to the delay in signing the wills. The court also noted that Mrs Mitchell executed her will in similar terms shortly after Mr Mitchell’s death.

The court concluded that the draft will represented Mr Mitchell’s testamentary intentions and that there was no good reason to refuse to exercise the discretion to declare the draft will valid under section 14 of the Wills Act 2007. The court declared the unsigned will of Mr Andrew Paul Mitchell to be valid.

The court’s final order was that the unsigned will of Mr Andrew Paul Mitchell drafted on or about 17 July 2014 is valid.

Orders