Estate of Phillips

[2019] NZHC 2233

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1562

[2019] NZHC 2233

IN THE MATTER OF

An originating application under Part 19, High Court Rules 2016 and Section 14 of the Wills Act 2007.

IN THE MATTER OF

the estate of JEANETTE LUCY PHILLIPS of Auckland, Company Director

Deceased

BETWEEN

CRAIG ALAN PHILLIPS AND GRAEME BARRY PHILLIPS

Applicants

Hearing:	On the papers
Counsel:	M Phillipps for Applicants
Judgment:	6 September 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 6 September 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Vicki Ammunsden Trust Law Limited, Auckland

In the estate of Jeanette Lucy Phillips [2019] NZHC 2233 [6 September 2019]

[1]This is an application for the following orders:

(a)Granting leave for the application to be made without notice to any other person; and

(b)That the signed and undated document (the document) and the signed codicil, dated 17 February 2019 (the codicil), copies of which were attached to the joint affidavit of the applicants, be declared as valid as the last will and codicil of the deceased.

Background

[2]        The relevant background is set out  in  an  affidavit  of  Alison  Walmsley.  Ms Walmsley is a barrister and solicitor of the High Court of New Zealand and, until very recently, was a solicitor at the firm of Fleming Foster, Solicitors. On 8 November 2018, she met with Jeanette Phillips and her husband, Barry Phillips, for the purpose of taking will instructions from Mrs Phillips. She understood that Mr Phillips had encouraged Mrs Phillips to update her will, and had made an appointment and brought her in. Ms Walmsley explained to Mrs Phillips that having a will that is up-to-date helps those who will be left behind on her death and she appeared to accept this.

[3]        They then discussed her property and her wishes as to how she wanted her property to be left on her death. As Mrs Phillips is the settlor of the Jeanette Phillips No 2 Family Trust (the Trust), the meeting also included discussion of what a trust entails.

[4]        Ms Walmsley prepared detailed notes of the matters discussed at the meeting. She then prepared a draft will according to the instructions that Mrs Phillips had provided, and she confirms that the draft will correctly reflects Mrs Phillips’ instructions and the intentions as they were expressed to her at the meeting.

[5]        In order to complete  the  will,  she  required  some  further  details  from  Mrs Phillips, but she was provided sufficient detail to ensure that the property specified on each bequest was able to be identified.

[6]        When Mrs Walmsley drafted the will, she inserted a description of the missing details into the draft as follows:

(a)At paragraph 4 (c) I noted a question mark as to the full account number of the ASB account ending in 52, the proceeds of which were to be left in equal shares to her grandchildren;

(b)At paragraph 4 (d) I noted that Mrs Phillips was to provide the bank account number for a Bank of New Zealand bank account, the proceeds of which were to be left to her grandson Oliver Phillips;

(c)At paragraph 4 (e) I noted that Mrs Phillips was to provide the full address of a property at Beacon Lee, Australia, which was to be left to her daughter Sandi Bergman;

(d)At paragraph 4 (f) I noted that Mrs Phillips was to provide the name of the bank and the full account number for a further bank account, the proceeds of which were to be left to Sandi Bergman.

[7]        Ms Walmsley also recorded in a file note that the bank account, referred to at paragraph 4 (f) of the draft will, was the bank account in Australia into which any income from the Beacon Lee property was paid into.

[8]        On 15 November 2018, Ms Walmsley wrote to Mrs Phillips. She set out the instructions that were provided and enclosed a copy of the draft will. She noted that:

These are draft documents only and can be amended to record your wishes. Please let us know if you wish to make any changes or if you would like to call in to discuss the draft documents.

[9]        Mrs Phillips did not, however, contact Mrs Walmsley after she posted the letter and the draft documents to her. Another staff member had regular contact with her husband regarding another matter. However, Mrs Phillips did not come in with him and she did not make contact with them again.

[10]      Mrs Phillips died on 22 March 2019 and, following her death, Ms Walmsley understands that the draft will that she had sent to her on 15 November 2018 was found amongst her personal papers. It is said that Mrs Phillips had signed the draft will, but her signature had not been witnessed. A handwritten note was located with the draft will and that note is also signed by Mrs Phillips and is dated 17 February 2019.

[11]      In that note, Mrs Phillips recorded that she was of sound mind and that she stood by her wishes as stated in “this document”. She also directed that if she and  Mr Phillips were deceased at the same time, then her daughter, Sandi, was to see to distributing her personal items. This is consistent with the provisions of the draft will, which left the chattels to Mr Phillips to distribute according to Mrs Phillips’ wishes.

[12]      Ms Walmsley notes that she does not believe that Mrs Phillips would have signed the draft will unless she fully intended that to reflect her final wishes. Following Mrs Phillips’ death, Fleming Foster made the necessary enquiries as to whether any other solicitor held a will for Mrs Phillips. Arrangements were made for a will enquiry notice to be placed in the New Zealand Law Society in April 2019.

[13]      Ms Walmsley has also been provided with a copy of Mrs Phillips’ last executed will, dated 26 September 1974.   The sole beneficiary of that will is Mr Phillips,   Mrs Phillips’ husband. Mr Barry Arthur Phillips, the husband of Jeanette Lucy Phillips, consents to the validation of the signed draft will and the handwritten note as Jeanette’s last will. I also have an affidavit from Craig Alan Phillips and Graeme Barry Phillips, the applicants. They confirmed that the draft will was found shortly after Mrs Phillips’ death. They are the executors named in the draft will and they are satisfied that the draft will and signed handwritten note reflect their mother’s testamentary intentions.

Jurisdiction

[14]      Section 14(2) provides that the Court may make an order declaring a document valid if it is satisfied that the document expresses the deceased’s testamentary intentions. Section 14(3) then provides that the Court may consider:

(a)The document; and

(b)The evidence on the signing and witnessing of the document; and

(c)Evidence on the deceased person’s testamentary intention; and

(d)Evidence of statements made by the deceased person.

[15]      I am satisfied that the document expresses the deceased’s testamentary intentions. It accords with the instructions given to her lawyers and with the note signed by her. The document is defective insofar as it was not witnessed. But as this Court has observed on a number of occasions, eye witness documents may be declared to be valid on satisfaction that they generally represent the intentions of the deceased.1 I am fortified in taking this approach given that the beneficiary under the previous will, Mr Barry Phillips, consents to the document being validated as a will.

[16]The orders as sought are therefore granted.

1      See Re Simunovich (dec’d) HC Auckland CIV-2011-404-005914, 17 October 2011; Re Application by Ashby [2017] NZHC 885; Gladwin v Public Trust [2011] 3 NZLR 566; Re Hughes HC Auckland CIV-2011-404-3742, 6 July 2011; Re Hickford HC Napier CIV-2009-441-369, 13 August 2009; Barker [2018] NZHC 2955.