Estate of Paterson (deceased)

[2015] NZHC 20

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000085 [2015] NZHC 20

UNDER

the Wills Act 2007

IN THE ESTATE OF AND

IN THE MATTER OF

LINDA MARGARET PATERSON (Deceased)

an application by DAVID STEWART GOULT for an order that the Will of LINDA MARGARET PATERSON be declared valid

Hearing:	[On the Papers]
Counsel:	D A Towle for the Applicant
Judgment:	22 January 2015

JUDGMENT OF VENNING J

This judgment was delivered by Justice Venning on 22 January 2015 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:    Bruce Dell Law, Auckland

Estate of L M Paterson (Deceased) [2015] NZHC 20 [22 January 2015]

[1]      Linda   Margaret   Paterson   died   on   17   November   2013   at  Auckland. Ms Paterson is survived by her partner, David Stewart Goult, their two children, Ryan and Candice, and Ms Paterson’s siblings, Karen Hancock, Robert Hey, Ian Hey and Andrew Hey.

[2]      Mr Goult seeks orders:

(a)       For    permission     to   commence    the    proceeding    by    originating application;

(b)Declaring the will of Ms Paterson, dated 6 October 2013, to be a valid will; and

(c)       Directing the costs of the application be paid on an indemnity basis as a first charge against the deceased’s estate.

[3]      There  are  two  testamentary  documents  in  existence:  a  previous  will completed by Ms Paterson on 13 October 1992; and the document sought to be declared as her valid will, dated 6 October 2013, signed by Ms Paterson.   The application is made under ss 14 and 11 of the Wills Act 2007 (“the Act”).

[4]      Section 14 of the 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]      Section 14(3) confirms the Court may take into account a number of factors in considering whether or not to declare a document valid as a will.  These include the document itself, which in this case is in the form of a will and is expressed to be so; the evidence as to the signing and witnessing of the document (which is referred to below); the evidence as to the deceased’s testamentary intentions; and evidence of any statements made by the deceased person.  I turn to consider those factors in more detail.

[6]      Mr Goult deposes that he and Ms Paterson were in a long-term stable de facto relationship, which became permanent when they commenced living together in

1993. They lived together as de facto partners until Ms Paterson’s death. The couple had  two  children,  Ryan  and  Candice.    Ms  Paterson  was  formerly  married  to Craig Reid Paterson, but that marriage was dissolved on 4 May 1994.

[7]      Ms Paterson first became unwell in about 2010.   She was diagnosed as having cutis laxa.   Her condition became progressively worse over time and significantly so during the last six months of her life.  Her condition deteriorated in early October 2013 when she and Mr Goult, together with friends, initially flew to Wellington  to  attend  the  Wearable Arts Awards  ceremony  on  5  October  2013. Ms Paterson collapsed on the flight down and was hospitalised.  She also collapsed on the return journey, which Mr Goult and she were making by car.  Ms Paterson was taken by emergency services to Wanganui Hospital.

[8]      Ms   Paterson   and   Mr   Goult   discussed   her   will   while   she   was   in Wanganui Hospital.      On   Ms   Paterson’s   instructions,   Mr   Goult   prepared   a handwritten will reflecting the parties’ intention that on her death, she would leave her assets to Mr Goult.  That was in fact consistent with a previous document the parties had prepared but not executed.

[9]      Mr Goult’s evidence is that Ms Paterson confirmed unequivocally that the will recorded what she wanted and, as noted, it was consistent with an earlier draft document the parties had prepared.

[10]     While Ms Paterson was in hospital, the parties’ friends, who had attended the Wearable Arts in Wellington with them, arrived to visit Ms Paterson.   Jan Lloyd agreed to witness Ms Paterson’s will.  The document, which is sought to be declared as Ms Paterson’s will, was discussed between Ms Paterson and Ms Lloyd.  Ms Lloyd has sworn an affidavit in which she deposes that Mr Goult left her and Ms Paterson alone, that she talked briefly to Ms Paterson, who confirmed that she would like her to witness her signature on the document as her last will.  On Ms Lloyd’s evidence, Ms Paterson had a very good understanding of what she was doing and why, and she was happy to witness the document.  Unfortunately, Ms Lloyd was the only person to witness the document, so that the will does not strictly comply with s 11.

[11]     The document that the parties prepared and that was executed by Ms Paterson and witnessed by Ms Lloyd is in all respects and form a very basic but otherwise conventional will.  The only reason that it is not valid in terms of s 11 of the Act is that it was not witnessed in the prescribed manner, namely by two witnesses.

[12]     I am satisfied, given the evidence before the Court, that the document reflects the testamentary intentions of Ms Paterson: Re Hickford (deceased),1  and that the reason the document was not witnessed by two people was simply oversight in the circumstances.   I am also satisfied that the document reflects Ms Paterson’s testamentary  intention  as  at  the  date  of  her  death  the  following  month.    It  is consistent with an earlier draft document.

[13]     Finally,   I   record   that   the   relevant   and   interested   beneficiaries   from Ms Paterson’s previous will, namely her siblings, have all confirmed in writing that they consent to the orders sought being made and are aware that, as a consequence,

the earlier will in their favour will be of no effect.

1      Re Hickford (deceased) HC Napier CIV 2009-441-369, 13 August 2009.

Result/orders

(a)       Leave  is   granted  to   commence  the  proceeding  by  originating application;

(b)      The document executed by Linda Margaret Paterson, dated 6 October

2013, and witnessed by Jan Margaret Lloyd is a valid will; and

(c)       Any costs of this application are to be paid on an indemnity basis as a

first charge against the deceased’s estate.

Venning J