Estate of Schoeman - [2019] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-338

[2019] NZHC 1417

IN THE MATTER of the Wills Act 2007

AND IN THE MATTER

OF THE ESTATE OF PETER DIRK SCHOEMAN

Hearing: On the papers

Counsel:

B R J Botting for Applicant

Judgment:

20 June 2019

JUDGMENT OF COOKE J

[1]By application dated 7 June 2019 Julie Elizabeth Schoeman applies for orders:

(a)that her substantive application proceed without notice to any other person; and

(b)that a document annexed to the affidavits referred to below be treated as the valid will of the deceased.

[2] The application is supported by an affidavit from the applicant dated 8 April 2019, an affidavit from Elaine Marie Dench dated 8 April 2019, an affidavit from Peter Michael Webb dated 14 March 2019 and a memorandum from counsel.

[3] I am satisfied it is appropriate that the matter proceed without notice or service in accordance with r 7.23 of the High Court Rules 2016, particularly given that the relevant affected parties have all consented to the application in the way that I outline below.

ESTATE OF PETER DIRK SCHOEMAN [2019] NZHC 1417 [20 June 2019]

Relevant circumstances

[4]Mr Schoeman died on 9 December 2018. The applicant is his wife.

[5] On 20 March 2018 Mr Schoeman executed a document headed up “Last will and testament” which I accept he intended to be his will. He signed that document, and it was witnessed by Ms Dench. But the will is invalid as it was not witnessed in accordance with the requirement of s 11(4) of the Wills Act 2007. An equivalent document was also signed by the applicant at the same time intended to be her will.

[6] Some years ago, Mr Schoeman made a valid will in South Africa. The applicant and Mr Schoeman were married in South Africa in 1995, and immigrated to New Zealand in 2010. The applicant explains the first will was executed after the birth of their first son in about 2001, but that in 2012 or 2013 they discussed that as a consequence of the birth of their further twin sons it should no longer apply, and it was destroyed. The applicant explains that at the time they intended to make new wills but did not get around to it. I accept that the destruction of this will means it is revoked under ss 40(2)(m) and (n), and ss 16(e) or (f) of the Wills Act 2007.

[7] The applicant explains that on 13 March 2018 Mr Schoeman suffered a medical event. He had an MRI on 16 March 2018 which revealed potential shadows on his brain. They then discussed making new wills, and the document in question was executed on 19 March 2018. Both the applicant and the witness, Ms Dench describe the execution of the documents.

[8] Under the document to which the application relates Mr Schoeman left his entire estate to the applicant, and failing that bequest,…

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: [2019] NZHC 1417
Decision Date: 20 June 2019

CaseChat Overview and Summary

The case of Estate of Schoeman involves an application by Julie Elizabeth Schoeman seeking orders that her substantive application proceed without notice to any other person, and that a document annexed to the affidavits be treated as the valid will of the deceased, Peter Dirk Schoeman. The application was supported by affidavits and a memorandum from counsel. The relevant affected parties, including the deceased’s three sons, consented to the application. The deceased had previously executed a will in South Africa, which was revoked by the destruction of the document. The applicant and the deceased had intended to make new wills but did not get around to it until shortly before the deceased's death. The application was brought under Section 14 of the Wills Act 2007, which allows the High Court to declare a document to be a valid will if it expresses the deceased's testamentary intentions, despite non-compliance with the formal requirements of the Act.

The central legal issue was whether the High Court should exercise its discretion under Section 14 of the Wills Act 2007 to declare the document in question as the valid will of the deceased. The court considered the document, evidence on its signing and witnessing, the deceased's testamentary intentions, and evidence of statements made by the deceased. The court found that the document clearly expressed the deceased's testamentary intentions, and granted the application, treating the document as the deceased's will. The court relied on both New Zealand and Australian authorities that adopt a robust approach to the application of Section 14, validating documents that plainly express the testamentary wishes of the deceased, despite any formal defects.

The court concluded that the document should be treated as the deceased's will under Section 14 of the Wills Act 2007, and duly made the order sought by the applicant. The final orders included that the substantive application proceed without notice to any other person and that the document annexed to the affidavits be treated as the valid will of the deceased.

Orders