Estate of Raistrick

[2022] NZHC 1650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1148

[2022] NZHC 1650

IN THE MATTER

AND

Of the Wills Act 2007

IN THE MATTER

AND

of the Estate of SHANNON ALEXANDRA RASTRICK

IN THE MATTER

of an application by GLENN PETER RASTRICK

Hearing:	(On the papers)
Judgment:	13 July 2022

JUDGMENT OF VENNING J

This judgment was delivered by me on 13 July 2022 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Boyle Mathieson, Auckland Counsel: A Gilchrist, Auckland

Estate of RASTRICK [2022] NZHC 1650 [13 July 2022]

[1]                   Shannon Alexandra Rastrick died as the result of an accident on 3 June 2022 aged 30 years. Ms Rastrick left behind a document in will form which was not executed in accordance with the requirements of the Wills Act 2007 (the Act). Glenn Rastrick, Ms Rastrick’s father, applies for orders validating the document dated 3 June 2022 as Ms Rastrick’s last will under the Act. The document names Mr Rastrick as executor and trustee of her will.

[2]                   Coincidentally on the same day that Ms Rastrick died in a motor vehicle accident on 3 June 2022, she had completed a document from “the New Zealand Will Kit” for a single person. Mr Rastrick confirms the document is in his daughter’s handwriting and that the initials on each of the pages are her initials. However, the document was not signed by Ms Rastrick and nor was it witnessed. Apart from that, the document satisfies the requirements of the Act. It is in the form of a will. It disposes of her assets, which are a house at Tokoroa, an insurance policy and other assets.

[3]                   Mr Rastrick has made inquiries whether another will exists. The legal firm that acted for Ms Rastrick on the purchase of the property at Tokoroa do not hold a will for her. Ms Rastrick did not have a partner at the time of her death and had no children.

[4]                   If the document is not declared a will her estate would be dealt with under the Administration Act 1969. Mr Rastrick and his former wife as the parents of Ms Rastrick would share her estate equally.

[5]                   Mr Rastrick, his former wife, and Ms Rastrick’s two brothers (one of whom does not take anything under the will) have all consented to the will being formalised as has a former boyfriend who does receive a cash legacy under the will. There are no other potentially interested or affected parties.

[6]In Re Feron Whata J referred to MacKenzie J’s helpful review of authorities in

Re Estate of Murray:1

1      Re Feron [2012] 2 NZLR 551; see also Re Estate of Murray HC Masterton CIV-2011-435-178, 20 December 2011.

Those authorities illustrate that a robust approach to the application of s 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14(2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

[7]                   In the present case there is no direct evidence about Ms Rastrick’s previous testamentary intentions, although the will document is clear enough as to her intentions as at 3 June 2022. Mr Rastrick confirmed that, after family discussions following the experience of Mr Rastrick’s current partner’s ex-husband dying without a will, Ms Rastrick was aware of the need to have a will. Mr Rastrick confirms he considers the document represents his daughter’s intentions at the time she died.

[8]                   In the circumstances, the Court is satisfied that the requirements under s 14 of the Act are satisfied. The document expresses Ms Rastrick’s testamentary intentions and should be validated as a will.

[9]                   There will be orders in accordance with the draft submitted, including that the costs of and incidental to the proceedings are to be paid from the estate.

Venning J