Estate of Rutherford

[2021] NZHC 655

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-297

[2021] NZHC 655

IN THE MATTER

AND

of Section 14 of the Wills Act 2007

IN THE MATTER

of the Estate of GRAEME JOHN RUTHERFORD

(Deceased)

AND

DEBORAH SUSAN LAY and THOMAS LUKE RUTHERFORD LAY

Applicants

Hearing:	On the papers
Appearances:	P Hunter for Applicants
Judgment:	29 March 2021

JUDGMENT OF LANG J

[on application for orders as to validity of will]

This judgment was delivered by me on 29 March 2021 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Simpson Western, Takapuna

In the matter of the Estate of GRAEME JOHN RUTHERFORD [2021] NZHC 655 [29 March 2021]

[1]    Mr Graeme John Rutherford died on 18 January 2021 at Auckland. He was survived by his wife, Ms Deborah Susan Lay, and their son, Mr Thomas Luke Rutherford Lay. They are the applicants in this proceeding.

[2]    Mr Rutherford signed his last will on 4 November 2009. That document was revoked by operation of law when he married Ms Lay on 24 April 2015.1

[3]    In or about November 2019 Mr Rutherford and Ms Lay gave their solicitor, Mr Gary Simpson, instructions to prepare new wills. He forwarded them a copy of the new wills in draft form in December 2019. Unfortunately, however, Mr Rutherford did not execute the new will before he died suddenly in January 2021. The applicants now seek an order under s 14 of the Wills Act 2007 (the Act) declaring the draft will sent to Mr Rutherford in December 2019 to be a valid will.

Jurisdiction

[4]    The Court may make an order under s 14 declaring a document to be a valid will if it is satisfied that it expresses the testamentary intentions of the deceased. In deciding whether to make such an order the Court may take into account the wording of the document, evidence as to the manner in which the document was signed and witnessed (where that occurs), evidence as to the testamentary intentions of the deceased and evidence of any statements that the deceased may have made relevant to that issue.2

[5]    In Re Estate of Feron, Whata J observed that a robust approach to the application of s 14 is required because it is a remedial provision requiring the courts to validate documents provided they plainly express the wishes of the deceased person.3 As a result, s 14 may be used in any case to cure technical non-compliance with the requirements of the Act. I agree with that approach.

1      Wills Act 2007, s 18.

2      Wills Act 2007, s 14(3).

3      Re Estate of Feron [2012] NZHC 3155 at [11].

Decision

[6]    As matters currently stand, Mr Rutherford’s estate would be divided between the applicants on his intestacy in accordance with the provisions of the Administration Act 1969. The evidence provided in support of the application satisfies me that no other persons would be entitled to receive a share of his estate under an intestacy.

[7]    Both the 2009 and the 2019 wills provided for Ms Lay to be appointed as Mr Rutherford’s executrix and for her to receive the whole of her husband’s estate. The only difference between the 2009 and the 2019 wills relates to the appointment of executors if Ms Lay was to die before her husband. The 2009 will appointed Mr Rutherford’s adult niece Jessica Toni Ryder and her husband Thomas James Ryder to be Mr Rutherford’s executors if Ms Lay died before him. Ms Lay explains that their son Thomas was only 16 years of age in 2009, and was therefore too young at that stage to be Mr Rutherford’s executor if Ms Lay died before him.

[8]    The 2019 will appointed his son Thomas and the partners of Mr Simpson’s law firm as Mr Rutherford’s executors if Ms Lay was to die before him. These particular provisions are obviously now of academic interest only. In all other respects the draft 2019 will mirrors the 2009 will.

[9]    Ms Lay has also  provided  an explanation for the fact  that neither she nor  Mr Rutherford signed the 2019 wills when they received them from Mr Simpson in early December 2019. She explains that, in anticipation that he would retire, Mr Rutherford began preparing his business for sale at the end of 2019. Although Mr Simpson sent a follow up letter to both Mr Rutherford and Ms Lay in March 2020, the onset of the COVID-19 pandemic in that month meant Mr Rutherford was thereafter required to devote all his energies to his business. Neither he nor Ms Lay found time to execute their new wills during the balance of 2020. Neither regarded the execution of the new wills as a matter of urgency during this period. Mr Rutherford then died suddenly and unexpectedly following an accident in January 2021. This meant neither he nor Ms Lay had signed the 2019 wills before Mr Rutherford died.

[10]   Furthermore, Ms Lay confirms that her husband never suggested to her that he intended to amend the draft 2019 will in any way.

[11]   This evidence satisfies me that the draft document Mr Simpson sent to Mr Rutherford in December 2019 represented Mr Rutherford’s testamentary intentions at that time. I am further satisfied that his intentions did not change thereafter. I therefore make an order under s 14 of the Act declaring the draft document Mr Simpson sent to Mr Rutherford in December 2019 to be a valid will.

Lang J