Estate of Ng - [2012] NZHC 2914

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5852 [2012] NZHC 2914

IN THE MATTER OF the Wills Act 2007 and the Administration
Act 1969

AND

IN THE MATTER OF LOO SHE NG, deceased

Hearing: On the Papers

Counsel: J Wickes for Applicant

Judgment: 8 November 2012

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 8 November 2012.

Solicitors: Loo & Koo, Auckland – aloo@loo-koo.co.nz

LOO SHE NG HC AK CIV-2012-404-5852 [8 November 2012]

[1] This is a “without notice” application for an order under s 14 of the Wills Act

2007 to declare valid an unexecuted will of Loo She Ng (“Mrs Ng”). The application is supported by two affidavits from Hine Ng, Mrs Ng’s only child, as well as an affidavit and a memorandum from Mr Arthur Loo who was Mrs Ng’s legal adviser for some 20 years until the time of her death.

[2] The facts, as they appear from Mr Loo’s affidavit, are as follows.

[3] Mrs Ng had one child, a son, Hine Ng. She also had a sister, Baolian Lu (who resides in China) and three brothers. Her brothers Shaochen Lu and Shaoting Lu reside in New Zealand. Her brother Shoguang Lu resides in China.

[4] On 3 June 2010 Mr Loo visited Mrs Ng at her home and she gave him instructions to prepare a will for her. He told her he would go back to his office, prepare the will in terms of her instructions and come back to see her with the completed will and two witnesses in order for the will to be signed and witnessed.

[5] On Mr Loo’s return to the office he drafted a will in terms of Mrs Ng’s instructions. He intended to take a legal executive at his office who speaks Chinese, together with another employee, back with him to Mrs Ng’s home in order to witness the will. However, shortly after his visit to Mrs Ng, the legal executive concerned became seriously ill and Mr Loo put the matter aside until her health improved. Unfortunately he then forgot about the matter and Mrs Ng died on 21 November
2011 without the will having been signed. Mr Loo’s evidence is that he is convinced the unexecuted will which he has annexed to his affidavit reflects Mrs Ng’s wishes. He has also provided the Court with a copy of the handwritten notes he made at the meeting with Mrs Ng, which are consistent with the draft will.

[6] Mr Loo has advertised in The Law News to see whether Mrs Ng had another will but there has been no response to that advertisement. Accordingly it is his belief that the draft will he prepared is Mrs Ng’s last will and testament.

[7] This application is made “without notice” to any other party. The first question therefore is whether that course is appropriate or whether there…

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: [2012] NZHC 2914
Decision Date: 8 November 2012

CaseChat Overview and Summary

The case involves an application for the declaration of validity of an unsigned will of the deceased, Loo She Ng, under section 14 of the Wills Act 2007. The application was brought by Arthur Loo, Mrs Ng’s legal adviser, and is supported by affidavits from Mrs Ng’s son, Hine Ng, and Mr Loo himself. The court was tasked with determining whether the unsigned will prepared by Mr Loo in accordance with Mrs Ng’s instructions should be recognised as her last will and testament.

The primary legal issue was whether the unsigned will complied with section 14 of the Wills Act 2007, which allows the High Court to declare a document valid if it appears to be a will, does not comply with formal requirements, and expresses the deceased's testamentary intentions. The court needed to ascertain if the evidence presented by Mr Loo and Hine Ng sufficiently demonstrated that the draft will reflected Mrs Ng’s testamentary wishes. Additionally, the court had to consider whether proper notice should have been given to other potential beneficiaries, specifically Mrs Ng's siblings.

The court found that the application could proceed without notice to other parties as it was unlikely that any other person would be prejudiced by the outcome. The document in question appeared to be a will and did not comply with the formal requirements of being signed and witnessed. The court was satisfied that the document expressed Mrs Ng’s testamentary intentions based on Mr Loo’s affidavit and the contemporaneous notes he made during his meeting with Mrs Ng. Hine Ng’s affidavit further supported the contention that the draft will represented his mother’s wishes, and he confirmed his support for the application after taking independent legal advice.

In conclusion, the court declared the unsigned will valid as the last will of Mrs Loo She Ng, finding that it accurately reflected her testamentary intentions. The draft will, marked as “A” and attached to Mr Loo’s affidavit, was accepted as the valid will of the deceased.

Orders