Estate of Rowell - [2012] NZHC 1823

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-001555 [2012] NZHC 1823

UNDER the Wills Act 2007

IN THE MATTER OF the Estate of Bernice Rowell (deceased) BETWEEN CHRISTOPHER CHARLES GRANVILLE
BRADLEY
Applicant

Hearing: 25 July 2012

Counsel: D McGill for the Applicant

Judgment: 25 July 2012

[ORAL] JUDGMENT OF WYLIE J

Distribution:
D McGill: d.mcgill@duncancotterill.com
S Hobson: s.hobson@duncancotterill.com

THE ESTATE OF BERNICE ROWELL HC AK CIV 2012-404-001555 [25 July 2012]

[1] Mr Christopher Bradley, an Auckland solicitor, has filed an originating application seeking an order that a document he prepared with the assistance of a staff solicitor on 13 December 2011, is the valid will of the late Bernice Rowell.

[2] Mr Bradley knew the deceased for some 45 years. He had a long-standing family and solicitor/client relationship with her. He is named as an executor and trustee in the document, and he seeks that it should be declared to be her valid will.

Background

[3] Mr Bradley drafted a will for the deceased in late 1992. On 3 November

1992, he sent the draft to the deceased for her approval. She approved the document, and it was signed and witnessed as her last will and testament on 23 December 1992.

[4] On or about 13 December 2007, the deceased made a number of handwritten alterations to the 1992 will. Mr Bradley was not contacted by the deceased to formalise those changes. Rather, they were made in handwriting, apparently in the deceased’s hand. They were signed by the deceased, and witnessed by an unknown witness who appears to have the surname “Tudehope”.

[5] On 8 November 2011, the deceased contacted Mr Bradley, and asked for a copy of her 1992 will so that she could review it. Mr Bradley sent a copy of the
1992 will to the deceased on the same day, along with a letter of engagement in anticipation that he would be instructed by her to update her will. On 13 December
2011 at 10.00 am, Mr Bradley received urgent instructions by way of a telephone call from the deceased. She asked him to draft a new will to reflect her testamentary wishes. Mr Bradley recorded the deceased’s instructions in a handwritten file note, a copy of which has been filed with the Court.

[6] Mr Bradley immediately instructed a solicitor in his team to prepare a draft will in accordance with the deceased’s instructions. That draft was prepared. However, on 14 December 2011, the deceased passed away before she had the opportunity to view the draft will or to sign it.

[7] Following the deceased’s death, a handwritten note was found amongst her

papers. That note reflected the instructions that she had given to Mr Bradley on

13 December 2011. It appears that the note is in the deceased’s hand.

[8] Mr Bradley has confirmed in an affidavit that the deceased was concise and coherent when she gave him her instructions over the telephone. He considered that she was extremely cogent in relation…

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: [2012] NZHC 1823
Decision Date: 25 July 2012

CaseChat Overview and Summary

The case of Estate of Rowell involved an originating application by Christopher Bradley, an Auckland solicitor, seeking a declaration that a document he drafted on 13 December 2011 is the valid will of the late Bernice Rowell. Bradley, who had a longstanding relationship with Rowell, was named as an executor and trustee in the document. The document was drafted in response to Rowell's instructions on 13 December 2011, but she passed away before she could sign it. A handwritten note reflecting Rowell's instructions was found among her papers after her death.

The legal issues before the court were whether the document prepared by Bradley was a valid will under section 14 of the Wills Act 2007 and whether it expressed Rowell's testamentary intentions. The court considered whether the document appeared to be a will, whether it complied with the formalities set out in the Wills Act, and whether it came into existence in or out of New Zealand. The court also considered evidence of Rowell's testamentary intentions and statements made by her.

The court found that the document was a testamentary disposition that expressed Rowell's testamentary intentions. It was in the normal form of a will, revoking earlier wills and appointing executors and trustees. Although it did not comply with the formalities set out in the Wills Act, the court was satisfied that it expressed Rowell's testamentary intentions. The facts of the case were similar to previous cases in which the court had validated documents recording the deceased's testamentary intentions.

Accordingly, the court made an order declaring the document to be the valid will of the late Bernice Rowell. The costs of the application were to be met out of the estate of the deceased.

Orders