Estate of Rae - [2021] NZHC 881

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-425-48

[2021] NZHC 881

UNDER the Wills Act 2007

IN THE MATTER

of the Estate of Olwen Frances Rae

BETWEEN

MALCOLM LEWIS RAE AND SARAH JANE McDONALD RAE

Applicants

Hearing: On the papers

Appearances:

O L Taylor for Applicants

Judgment:

23 April 2021

Reissued:

28 April 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 April 2021 at 3.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1] The applicants, Malcolm Lewis Rae and Sarah Jane McDonald Rae, seek an order pursuant to s 14 of the Wills Act 2007 declaring a document to be the valid will of the deceased, Olwen Frances Rae, who died at Invercargill on or about 13 September 2018. This declaration is sought because the document has been altered in a way which does not comply with s 15 of the Wills Act.

RE RAE [2021] NZHC 881 [23 April 2021]

[2] The application is made without notice, on the grounds that all persons who may potentially be affected by the granting of the order have consented to the application. A memorandum of counsel dated 26 February 2021, filed in response to a query from the Court, provides evidence that any potentially affected persons consent to the application on the basis that the applicants will honour bequests made to them in an earlier will.

[3] I am satisfied that all affected parties have consented to the application and that it can proceed without notice.

Background

[4] On 15 September 2000 the deceased created a will (the original will). No issue has been raised with the validity of this document. The original will appointed the Trustees Executors and Agency Company of New Zealand Ltd and Sarah Rae, Olwen Rae’s daughter, as the executors and trustees of the will.

[5] The original will directed that Olwen Rae be buried at the Eastern Cemetery, Invercargill, and that her trustees arrange a plaque to be placed in the rose garden at All Saints Church (the Church). It also made the following bequests and directions:

(a)the sum of $4,000.00 is to be given to the Church;

(b)the sum of $4,000.00 is to be given to Avis Wyber;

(c)all personal chattels are to be given to the trustees to be disposed of in accordance with any list made, or if no list exists, shall form part of the residuary estate;

(d)that any debts, funeral expenses, the trustees’ administration expenses and any death duty payable on the estate are paid; and

(e)that the residue is to be divided equally between Malcolm Lewis Rae and Sarah Jane McDonald Rae.

[6] Another will, which is the subject of this application, was signed and witnessed by two witnesses, on 10 September 2003 (the contested will). However, changes were made to the contested will. These changes were made by deleting provisions in the contested will and adding new…

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: [2021] NZHC 881
Decision Date: 23 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the applicants, Malcolm Lewis Rae and Sarah Jane McDonald Rae, sought to have a document declared the valid will of their mother, Olwen Frances Rae, who died on or around 13 September 2018. The applicants’ application was brought under section 14 of the Wills Act 2007, seeking to validate a document that had been altered in a way which did not comply with the requirements of section 15 of the Act. The applicants sought the declaration without notice, on the basis that all persons who may potentially be affected by the granting of the order had consented to the application. The Court was satisfied that all affected parties had consented to the application and that it could proceed without notice.

The legal issue before the Court was whether it was appropriate to validate the contested will, notwithstanding its non-compliance with the requirements of section 15 (and therefore section 11) of the Wills Act, in order to carry out the testamentary intentions of the deceased, Olwen Rae. The Court considered whether the contested will, in combination with a note found in the deceased’s paperwork, showed the deceased’s clear testamentary intentions. The Court concluded that the document as changed still appeared to be a will and expressed the deceased’s testamentary intentions. The Court was satisfied that it was appropriate to validate the contested will, notwithstanding its non-compliance with the requirements of section 15 (and therefore section 11) of the Wills Act, in order to carry out the testamentary intentions of the deceased, Olwen Rae.

Accordingly, the Court ordered that the document attached as exhibit A to the affidavit of the applicants is declared to be the valid will of the deceased, Olwen Frances Rae. The applicants were, in their personal capacity, jointly ordered to meet the bequests to the beneficiaries of the original will set out in the Court’s judgment.

Orders