Estate of Savery

[2016] NZHC 1833

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-576 [2016] NZHC 1833

IN THE ESTATE               of DAVID CHARLES SAVERY

Hearing:	On Papers
Counsel:	A P D Napier for Applicant
Judgment:	8 August 2016

JUDGMENT OF BROWN J

[1]      The applicant applies for an order under s 14 of the Wills Act 2007 declaring valid a draft will of the deceased, David Charles Savery, which was prepared in

1994.   The applicant who is the widow of the deceased has filed an affidavit explaining the circumstances giving rise to the preparation of the draft will.

[2]      In 1994 the deceased and the applicant instructed their solicitor at the time to draw up wills for both of them, their intention being that the property of each of them would be passed to the other in the event of death.   On 9 June 1997 they received from their solicitor copies of the wills which had been prepared in 1994 and were requested to contact their lawyer about them.  They felt no urgency to attend to execution of the wills as they believed that all their property and assets would pass to the other in any event.

[3]      The deceased worked as a commercial real estate agent for the 24 years prior to his death.  For 10 of those years he worked from his home where the applicant

worked for him as his personal assistant.

IN THE ESTATE OF DAVID CHARLES SAVERY [2016] NZHC 1833 [8 August 2016]

[4]      The applicant deposes that the nature of their working relationship was such that  they often  discussed  financial  matters.    She  states  that  at  no  time  did  the deceased indicate that his wishes had changed from the draft will prepared for him in

1994.   It remained their mutual intention that if either of them were to die, then property would pass to the survivor and in the event of both their deaths, their property would pass to their children in accordance with the unsigned wills.

[5]      The applicant has made full inquiries and searches for an earlier or later will made by the deceased and is satisfied that the deceased did not execute an earlier or later will.  Hence if the document, the subject of the application, is not declared to be a valid will, the deceased will be wholly intestate.

[6]      The persons with a beneficial interest in the estate of the deceased on an intestacy would be the applicant and her two adult children.  Annexed to the applicant’s affidavit are consents by those children to an order being made declaring the draft will to be a valid will of the deceased.

[7]      The Court may make an order declaring a document to be a valid will if it is satisfied that the document expresses the testamentary intentions of the deceased.  In deciding whether to make such an order the Court may consider the wording of the document, evidence as to the manner in which the document was signed and witnessed, evidence as to the testamentary intentions of the deceased and evidence of

any statements that the deceased may have made relevant to the issue.1

[8]      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.2   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 14(3).

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

[9]      I am satisfied on the evidence that the draft will is a document which appears to be a will, it does not comply with the requirements of s 11 of the Act (in that it is neither signed nor witnessed) and it expresses the deceased’s testamentary intentions at the time of the instructions to prepare the will, which intentions had not changed at the date of his death.

[10]     Accordingly I make an order under s 14 validating the 1994 draft will of the

deceased a copy of which is annexed to the applicant’s affidavit marked with the letter “A”.

Brown J