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: [email protected]

S Hobson: [email protected]

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 to the specific details that she wanted to include in her will.   He has expressed the opinion, both from a professional and from a personal perspective, that the deceased was of sound mind and that she had testamentary capacity to instruct him to update her will.

The Application

[9]      The application was commenced by way of originating application. Approval to that course was given by Associate Judge Christiansen.

[10]     Subsequently, an application for directions as to service was filed.   It was proposed that all parties identified in the 1992 will, and all parties identified in the will prepared by Mr Bradley, should be served with copies of the relevant papers. Directions as to service were made by Associate Judge Christiansen  on 26 March

2012.

[11]     On 7 May 2012, Venning J put in place a timetable within which any notices of opposition and supporting affidavits were required to be filed and served.

[12]     Affidavits of service on all of the parties directed to be served have been filed.    The  parties  were  served  with  all  relevant  papers,  including  a  copy  of Venning J’s minute.

[13]     No notices of opposition have been filed.  A notice of appearance reserving rights has been filed by the National Heart Foundation of New Zealand.  It records that the Foundation does not oppose Mr Bradley’s application; it wished to preserve its rights in the event that some other party took a step in the proceedings adverse to its interests.

[14]     The  matter  was  set  down  before  me  this  morning.    I  have  heard  from Mr McGill  and  Ms  Hobson  in  support  of  the  application.    There  has  been  no appearance by any other party.

Decision

[15]     The application is made under s 14 of the Wills Act 2007.   It provides as follows:

14       High Court may declare will valid

(1)       This section applies to a document that—

(a)      appears to be a will; and

(b)      does not comply with section 11; and

(c)      came into existence in or out of New Zealand.

(2)       The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3)       The Court may consider—

(a)      the document; and

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

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

and

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

[16]     The Court has, on a number of occasions, exercised its jurisdiction under s 14 to validate wills that do not comply with the requirements set out in the Wills Act.[1]

As has been noted by Whata J, those authorities illustrate that a robust approach to the application of s 14 is appropriate.[2]  The Act should be approached:

…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…

[1] See, for example, Re Estate of Murray [2012] 2 NZLR 546 (HC) at [9]–[13], where McKenzie J

discusses the authorities.

[2] Re Estate of Feron [2012] NZHC 44 at [11].

[17]     I propose to address each of the requirements set out in the section in turn.

[18]     First, there is clearly a document as defined in s 6 of the Act.  That document is  the  draft  will  which  was  prepared  by  Mr  Bradley  on  instructions  from  the deceased.

[19]     Secondly, the document appears to be a will.  It is in the normal form that one would expect of a will.  It records that it is the last will of the deceased.  It revokes her earlier wills.   It  appoints executors and trustees.   It makes  gifts  to various identified individuals and then disposes of the residue of the estate.   The will has been  prepared  by a solicitor and  is,  to all intents  and  purposes,  a testamentary disposition.

[20]     Thirdly, the draft will does not comply with s 11 of the Wills Act.  It has not been signed by the deceased, nor has it been witnessed.

[21]     Section 14(1)(c) is not in issue. The document was prepared in Auckland.

[22]     I  am  satisfied  that  the  draft  will  expresses  the  deceased’s  testamentary intentions.  It disposes of property to which the deceased was, prima facie, entitled. It  sets  out  clearly her intentions  in  relation  to  those  assets  on  her  death.    The testamentary dispositions are consistent with the handwritten note found in the deceased’s possession following her death.   It seems that the deceased wanted to update her 1992 will because a number of the beneficiaries named in that will had predeceased her. Mr Bradley was satisfied the deceased had testamentary disposition when she instructed him.  There is cogent evidence that the document reflects the testamentary intentions of Ms Rowell.

[23]     The facts in the present situation are very similar to the facts in Re Estate of

Brown,[3]  Re Estate of Brundall[4]and Re Estate of Irvine.[5]    In each case, the Court validated the document recording the deceased’s testamentary intention.

[3] Re Estate of Brown HC Auckland CIV 2010-404-006328, 13 October 2010.

[4] Re Estate of Brundall [2011] 3 NZLR 528 (HC).

[5] Re Estate of Irvine HC Whangarei CIV 2011-488-677, 26 October 2011.

[24]     Accordingly, having considered the affidavits filed in support and the various matters detailed in s 14(3), I am satisfied on the balance of probabilities that the draft will prepared by Mr Bradley and a staff solicitor on 13 December 2011, which is annexed to the notice of originating application, is the deceased’s will.  I make an order declaring the document to be the valid will of the late Bernice Rowell.

[25]     The costs of the application are to be met out of the estate of the deceased.

Wylie J