Estate of Robins

[2016] NZHC 2994

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-1174 [2016] NZHC 2994

IN THE MATTER OF	Section 14 of the Wills Act 2007
IN THE MATTER OF	the estate of EVELYN ELIZABETH ROBINS

Hearing:	12 December 2016 (On the papers)
Appearances:	J J McCall for Applicants
Judgment:	12 December 2016

JUDGMENT OF DUNNINGHAM J

[1]      On 31 March 2011, Evelyn Elizabeth Robins (the deceased) made a will with her lawyers, Papprills Lawyers (the 2011 will).  In it she left numerous bequests to named persons,  as well  as two bequests to charitable institutions.   She left the residue of her estate to her two nephews, Jeremy and Nicholas Robins.  There is no issue  as  to  the  validity  of  that  will.    However,  on  13 October  2016,  she  gave instructions to her lawyers to draft a codicil to her 2011 will.  This was to add two further specific bequests to her will, being a gift of $10,000 to Deborah Turner and a gift of $1,000 to Troy Turner, who were friends of hers.   In all other respects she confirmed her 2011 will.

[2]      The  codicil  was  duly  drafted  by  her  lawyers  but,  before  she  had  an opportunity to sign it, she passed away on 22 October 2016.

Estate of EVELYN ELIZABETH ROBINS [2016] NZHC 2994 [12 December 2016]

[3]      The application to validate the intended codicil to the deceased’s will  is accompanied  by  an  affidavit  from  Lois  Stone,  the  solicitor  who  met  with  the deceased on 13 October 2016.   Ms Stone took the deceased’s instructions for the drafting of the codicil.  She confirms that she is satisfied that the deceased had the requisite testamentary knowledge and approval required for the intended codicil to be  validated  and  the  codicil,  as  drafted,  represents  the  deceased’s  testamentary wishes.

[4]      The three executors and trustees of the 2011 will, Barbara Anne Peddie, Barabara Josephine Austin and Madeline Jane Austin, also provide affidavit evidence to support the application.  They explain that Deborah Turner and Troy Turner are aware of the application and the consents of those two parties to the application being granted are annexed to their affidavit.   They also attach the consent of the deceased’s nephews, Jeremy and Nicholas Robins, who are the only beneficiaries of the 2011 will who are affected by the validation of the codicil.   Barbara Austin confirms that it is her belief, too, that it was the deceased’s intention to leave the specified gifts to Deborah Turner and Troy Turner and that she would have signed the codicil had she met with Lois Stone again before she passed away.

The Wills Act 2007

[5]      The issue of whether a codicil to a will can be validated under the Wills Acts

2007 when it does not comply with s 11, was discussed in Re Prince.1     In that judgment McKenzie J was satisfied that a codicil to a will can be validated as a consequence of s 8(3)(e) of the Wills Act defining the term “will” to include, where appropriate in the context, a codicil to a will.2   He held that in, the context of s 14, the reference to “will” included a codicil under s 8(3)(e) and the Court therefore had the power to declare a codicil valid.3

[6]      I therefore approach  the question of whether to grant the application  by deciding whether the requirements of s 14 are met with respect to the intended

codicil. This section requires that:

1      Re Prince [2012] NZHC 1058.

2      Wills Act 2007, s 8(3)(e).

3      Re Prince, above n 1, at [13]-[14].

(a)       the document appears to be a will (or in this case a codicil to a will); (b)       it does not comply with s 11; and

(c)       the Court is satisfied it expresses the deceased’s testamentary wishes.

[7]      The intended codicil is in a form which appears to be a codicil to a will. However, it does not comply with s 11 because it has not been signed or witnessed. Having regard to the affidavit evidence filed in support of the application, I am satisfied that the draft codicil expresses the deceased’s testamentary intentions.

[8]      Because I have the consent of both the beneficiaries who will benefit if the intended codicil is validated as a codicil to the will, as well as the consent of the only beneficiaries who would be affected by the validation, I am satisfied it is appropriate to make the order sought on the papers and without requiring notification to any further party.

[9]      Accordingly, I make an order under s 14 of the Wills Act 2007 validating the intended codicil as a codicil to the deceased’s will dated 31 March 2011.

Solicitors:

Papprills, Christchurch