Estate of Ritchie

[2024] NZHC 1927

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-186

[2024] NZHC 1927

IN THE MATTER	of the Wills Act 2007, section 14
AND
IN THE MATTER	of an application by HEATHER JEAN RITCHIE for an order that documents be declared a valid will of the deceased ROBERT GEORGE RITCHIE

Hearing:	On the papers
Counsel:	S P Lewke-Bandara for Applicant
Judgment:	15 July 2024

JUDGMENT OF McHERRON J

[1]                 This is a without notice application by Heather Jean Ritchie for an order under s 14 of the Wills Act 2007 (the Act) declaring her late father Robert George Ritchie’s amended will and codicil valid. I allow the application for the following reasons.

Background

[2]                 Robert Ritchie had five biological  children:  Heather,  the  late  Malcolm,  the late Gordon, Ian, and Andrew. Malcom and Gordon pre-deceased Robert.

[3]                 During his lifetime, Robert Ritchie told his step-daughter Anne Van Der Straaten that he had completed a will and where it was stored for safe keeping. After Mr Ritchie died on 20 June 2022, Ms Van Der Straaten and her mother (Mr Ritchie’s

ESTATE OF RITCHIE [2024] NZHC 1927 (15 July 2024)

wife), the late Mary Ritchie, found the documents exactly where he said they were, in a black box in the desk drawer of his home office. The documents were:

(a)a pre-printed “New Zealand Will Kit | Last Will” form that Mr Ritchie had filled out in handwriting. The original handwritten insertions on the will form were signed by Mr Ritchie on 13 June 2005 and witnessed by two witnesses. On its face, it appears that the original handwritten will could be regarded as valid in terms of the requirements of the Act. However, changes Mr Ritchie made in handwriting on 4 December 2009 and 21 November 2011 do not appear to have been witnessed in accordance with s 15 of the Act; and

(b)a handwritten  codicil  dated  25  September  2013  and  signed  by  Mr Ritchie, but not witnessed, together with undated handwritten changes to that codicil, that appear to have been initialled by Mr Ritchie but were not witnessed;

(together, the Documents).

[4]                 The Documents were stapled together when Ms Van Der Straaten found them. She has deposed that no other document “of testamentary nature” was attached.     Ms Van Der Straaten delivered the Documents to the estate’s lawyer. Copies of the Documents are exhibited to Ms Van Der Straaten’s affidavit filed in support of Heather Ritchie’s application for orders:

(a)granting leave for the application to be made on a without notice basis;

(b)that the Documents be declared a valid will and first codicil to the will of Mr Ritchie.

[5]                 In summary, the 2005 will made specific gifts to Mary Ritchie and each of  Mr Ritchie’s five biological children. In addition, Mr Ritchie gave his children the following percentages of the estate once it had been finalised:

(a)Gordon: 25 per cent.

(b)Malcolm: 25 per cent.

(c)Andrew: 12.5 per cent.

(d)Ian: 12.5 per cent.

(e)Heather: 25 per cent.

[6]                 These percentages were revised in the 2009 handwritten changes, following the deaths of Gordon and Malcolm. Under the 2009 changes, the surviving children received percentages of the estate once finalised, as follows:

(a)Andrew: 30 per cent.

(b)Ian: 30 per cent.

(c)Heather: 40 per cent.

[7]In the 2011 handwritten changes, three cash gifts were added to:

(a)Robert Ritchie’s former daughter in law Julie Ritchie: $500.

(b)Gordon Ritchie’s daughter Kathleen Ritchie: $1,000.

(c)Gordon Ritchie’s son Steven Ritchie: $1,000.

[8] Finally, the 2013 “codicil” (as amended) revises the specific chattel bequests and increases the gifts to Kathleen Ritchie and Steven Ritchie to $4,000 each. The gift to Julie Ritchie has been removed. The percentages referred to at [6] above are not altered.

[9]                 I note that in the codicil Mr Ritchie refers to “the will dated 13.7.05”. As described above, the 2005 will is dated 13 June 2005. However, I am satisfied that the codicil does not refer to a subsequent will, but instead that the date reference in the

codicil is a mistake. The fact that changes were made to the 13 June 2005 will in 2009 and 2011 indicates that there is not a separate 13 July 2005 will.

[10]              On 6 May 2023, Mary Ritchie died, having renounced her right and title to probate and execution of the will and first codicil changing the will. The executor of Mary Ritchie’s estate is Ms Van Der Straaten, who consents to the validation of the Documents sought by Heather Ritchie in the present application.

[11]Consents to the validation of the Documents have been supplied by each of:

(a)the three surviving children of Robert Ritchie, Andrew, Ian and Heather;

(b)Kathleen Ritchie, Steven Ritchie, and Julie Ritchie.

[12]Heather Ritchie has deposed that:

(a)she has made full inquiries and searches for an earlier will made by Mr Ritchie;

(b)she is satisfied that Mr Ritchie did not execute an earlier will;

(c)if the Documents are not validated, Mr Ritchie will be intestate.

[13]              For completeness, annexed to Ms Ritchie’s affidavit is a letter from Te Tari Taiwhenua Internal Affairs confirming that searches of the relevant registers were made for orders, declarations or instruments evidencing Mr Ritchie fathered any other children. No such records were found.

[14]              On 10 April 2024, I issued a minute acknowledging Heather Ritchie’s thorough inquiries as recorded in her affidavit and counsel’s memorandum. However, before I was prepared to consider making the necessary preliminary orders that this application may be made without notice to any person, I requested Ms Ritchie to make inquiries with the personal representatives of Gordon Ritchie and Malcolm Ritchie and attempt to obtain their consent to the application.

[15]              Consents from Gordon Ritchie’s children, Kathleen and Steven were provided to the Court in late June 2024. I then issued a further minute dated 4 July 2024 asking counsel for Heather Ritchie to file a memorandum explaining why the requested consent from each of Gordon and Malcolm’s personal representatives had not been supplied.   I indicated that my concern was that the original will document dated     13 June 2005 minus any subsequent changes could be regarded as a valid will. In other words, I was not prepared to accept Ms Ritchie’s assertion that, if the Documents are not validated, there would be an intestacy. That was why, in my view, it seemed important to ascertain the views of the personal representatives of the deceased sons of Mr Ritchie Senior (Gordon and Malcolm) before I proceeded to validate the changes to the original will.

[16]              Counsel filed a helpful memorandum dated 5 July 2024 explaining that Heather Ritchie cannot provide a consent from each personal representative of Gordon and Malcolm Ritchie. That is because there are no personal representatives of those individuals, as:

(a)Gordon Ritchie died intestate without a valid will. Upon his death he did not have a spouse although his two children, Kathleen Ritchie and Steven Ritchie, have both provided their consents to the validation.

(b)Malcolm Ritchie also died intestate and formal administration was not granted. Upon Malcolm’s death he had no spouse or children. His parents were living, but both have since died. Malcolm’s siblings, namely Ian Donald Ritchie, Andrew Ross Ritchie and Heather Jean Ritchie are the persons who would benefit from Malcolm’s estate. They have all provided their consents to the validation.

My assessment

[17]              The changes to the 2005 will and the 2013 codicil and the changes made to it do not comply with ss 11(2) and 15 of the Act, because they are not witnessed as required by those sections.

[18]              Section 14 of the Act provides that the High Court may make an order declaring a document that appears to be a will valid if it is satisfied that the document expresses the deceased person’s testamentary intentions.1 The Court may consider:2

(a)the document;

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

(c)evidence on the deceased person’s testamentary intentions; and

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

[19]Based on the material submitted by the applicant, I am satisfied:

(a)the present application can proceed without notice; and

(b)the 2005 will, the unwitnessed changes to the 2005 will and the 2013 codicil and the changes made to it express Robert Ritchie’s testamentary intentions.

Result

[20]              I declare that the Documents, copies of which are marked “A” and “B” and are annexed to the affidavit of Anne Van Der Straaten, affirmed on 6 March 2024, are valid.

McHerron J

Solicitors:
Denham Bramwell Lawyers, Manukau for Applicant

1      Wills Act 2007, s 14(2).

2      Section 14(3).