Estate of Shallcross

[2012] NZHC 2438

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2012-463-494 [2012] NZHC 2438

UNDER  Section 14 of the Wills Act 2007

IN THE MATTER OF     The Estate of JENNIFER ANN SHALLCROSS

BETWEEN  JILL STEELE AND JOHN WINK Applicants

Hearing:         On the Papers

Counsel:         MP Ward-Johnson for Applicants

Judgment:      20 September 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 20 September 2012 at 2:15 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

I Bentley, Buddle Bentley McCleary, Whakatane:

Copy:

MP Ward-Johnson, Tauranga:  [email protected]

ESTATE OF JA SHALLCROSS HC ROT CIV-2012-463-494 [20 September 2012]

[1]      Jennifer Ann Shallcross died on 24 October 2011 leaving an adult daughter, Sandra, who has two children, aged 25 and 19 respectively, and an adult son, Jolyon.

[2]      She also left a valid Will dated 10 September 1990 (“the 1990 Will”) which provided that, in the event of her being predeceased by her husband (which is the case), her estate was to be divided equally between her children, with surviving grandchildren succeeding in the event that their parent predeceased Mrs Shallcross.

[3]      Among the private papers found after Mrs Shallcross’s death, however, were

three documents signed by her. They were:

(a)       a document described as her “Last Will and Testament” and dated

5 March 2009 (“the 2009 Last Will”);

(b)      a separate document headed “Things You Need to Know if Anything

Happens to Me” (“the Things You Need to Know document”); and

(c)       a Power of Attorney and Deed of Delegation under the Trustee Act, also dated 5 March 2009 (“the Power of Attorney”).

[4]      The 2009  Last Will and Power of Attorney were  witnessed by a friend, Mr Kirby,  who  has  deposed  that,  while  he  did  not  read  the  contents  of  the documents, it was explained to him and he understood that Mrs Shallcross intended by the documents to give directions as to the disposition of her estate.

[5]      The 2009 Last Will is not a valid Will in that it was not signed in the presence of at least two witnesses as required by s 11(4) of the Wills Act 2007.

[6]      There can be no doubt, however, that the 2009 Last Will and the Things You Need to Know document, read together, provide clear directions as to the distribution of Mrs Shallcross’s estate.   Some specific bequests and the absence of residuary beneficiaries apart, the Will generally reflects Mrs Shallcross’s wishes in the 1990

Will.

[7]      The applicants were appointed executors and trustees of the 1990 Will.  They are not referred to in the 2009 Last Will but it is clear from the three documents read together  that  Mrs Shallcross’s  intention  was  that  her  son  Jolyon  should  be responsible for carrying out the terms of her Will.

[8]      I am satisfied that the 2009 Last Will and the Things You Need to Know document should be read together and treated as one document, and that they express Mrs Shallcross’s testamentary intentions.

[9]      Leave is granted to the applicants to amend paragraph 1(b) of the application to read:

Declaring the documents attached as exhibit “C” and “D” to the affidavit of John Gilbert Wink respectively documents by the deceased titled Last Will and Testament of Jennifer Ann Shallcross, 25A Mokorua Parade, Whakatane dated  5 March 2009’ and  document  titled  ‘Things  you  need  to  know  if anything happens to me’ to constitute the last valid Will of Jennifer Ann Shallcross and granting probate to Jolyon Shallcross.

[10]     For the reasons given, I make a declaration in terms of paragraph 1(b) of the application.

[11]     I order that the applicants’ costs of and incidental to the application be met from the deceased’s estate.

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Toogood J