Estate of Nam

[2022] NZHC 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1378

[2022] NZHC 2023

IN THE MATTER	of Section 14 of the Wills Act 2007
IN THE ESTATE	of SANG WOO NAM, of Auckland, Retiree, Deceased
AND
IN THE ESTATE	An application by Young Ae KIM Applicant

Hearing:	On the papers
Appearances:	L Beveridge for Applicant
Judgment:	16 August 2022

JUDGMENT OF LANG J

[on application for orders under s 14 of the Wills Act 2007]

This judgment was delivered by me on 16 August 2022 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Queen City Law, Auckland

In the estate of NAM [2022] NZHC 2023 [16 August 2022]

[1]    Mr Sang Woo Nam died at Auckland on 15 March 2022. On 24 December 2020 he had signed a new will. Unfortunately, however, the will was not witnessed as required by law. His wife, Ms Young Ae Kim, now seeks an order under s 14 of the Wills Act 2007 (the Act) declaring the document that her husband signed on 24 December 2020 to be a valid will.

Background

[2]    The issue that has arisen in the present case was caused by the fact that the will was signed whilst Auckland was still subject to restrictions imposed as a result of the COVID-19 pandemic. In order to provide assistance for persons who wished to execute wills during this period the Government passed the Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order 2020 (the Order). This permitted witnesses to the signing of wills to view a will being signed by remote means. The witnesses to the will were then required to confirm on the face of the will that they had witnessed the signing of the will in that way.

[3]    In the present case Mr Shin, the lawyer who prepared Mr Nam’s will, took it to Mr Nam’s house in Albany, where he and Mr Nam both signed the document in each other’s presence. It had been intended that another lawyer, Ms Hwang, would travel with Mr Shin to Mr Nam’s address. At the last minute this proved not to be possible. However, Ms Hwang was able to use a cellphone application to view the will being signed by Mr Nam and witnessed by Mr Shin. When Mr Shin returned to the office Ms Hwang then signed the will in her capacity as a witness. Unfortunately, however, this did not comply with the requirements of the Order. In order to comply with the Order it was necessary for all parties to sign the document in each other’s presence even if remote means was used to achieve this object. In addition, the will needed to contain a special attestation clause confirming it had been signed in that way.

The law

[4]Section 14 of the Wills Act provides as follows:

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.

[5]    The principles to be applied in the present context are now well established. In short, the onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased.1 The Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.2

[6]    In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that “a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.3

Decision

[7]    The situation that has arisen in the present case has obviously been caused by a misunderstanding of the requirements of the Order. It is, however, an error as to form rather than substance.

1      Kirner v Falloon [2015] NZHC 1873, at [20].

2      Re Campbell (deceased) [2014] 3 NZLR 706, at [15].

3 Re Estate of Wong [2014] NZHC 2554, at 24].

[8]    There can be no dispute that Mr Nam intended the document to be his final will and that all parties intended to sign and witness the document in accordance with the requirements of the Order. The defect that has arisen is technical in nature. I therefore have no hesitation in making an order under s 14 of the Act declaring the document that Mr Nam signed on 24 December 2020 to be a valid will.

Lang J