Estate of Smith - [2022] NZHC 1361

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-309

[2022] NZHC 1361

UNDER Section 14 of the Wills Act 2007

IN THE MATTER

of the estate of MARTIN JAMES SMITH

On the papers

Counsel:

T J Reeves for Applicant

Judgment:

9 June 2022

JUDGMENT OF SIMON FRANCE J

[1] The executors of the will of Mr Martin James Smith apply under s 14 of the Wills Act 2007 for orders that three documents purporting to be codicils to a valid will are themselves valid testamentary documents.

The applicability of s 14 to codicils

[2] A preliminary issue is whether the s 14 power extends to changes to a will. Section 14 provides:
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.

The court may consider—

(a)the document; and

RE SMITH [2022] NZHC 1361 [9 June 2022]

(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.

[3] The matter has arisen twice previously.1 On both occasions the Court considered s 8 was wide enough to include an intended codicil. While I agree with those conclusions, it will be helpful to set out the analysis in fuller detail than has previously occurred.

[4] On its face s 14 appears directed at the act of making a will, but s 8 of the Act contains an extended definition of will. Section 8(1)–(3) provides:

8 Meaning of will
(1)Will means a document that—
(a)is made by a natural person; and
(b)does any or all of the following:
(i)disposes of property to which the person is entitled when he or she dies; or
(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)appoints a testamentary guardian.

(2)When this Act refers to making, changing, revoking, or reviving a will, it means a will as defined in subsection (1).

(3)When this Act refers to a will in any other context, it means whichever is appropriate of the following:
(a)a will as defined in subsection (1); or
(b)a document that changes a will as defined in subsection (1); or
(c)a document that revokes a will as defined in subsection (1); or
(d)a document that revives a will as defined in subsection (1); or
(e)a codicil to a will as defined in subsection (1).

[5] There are therefore two definitions of will depending on the context within which it is used. Section 8(3) is the broader term and must be the one applicable to s 14 in order for the documents in issue here to come within it.

[6] The…

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: [2022] NZHC 1361
Decision Date: 9 June 2022

CaseChat Overview and Summary

The case of the Estate of Martin James Smith involves an application by the executors of Mr Smith's will to the High Court of New Zealand, seeking a declaration that three documents purporting to be codicils to his will are valid testamentary documents. The application was made under section 14 of the Wills Act 2007. The court was required to decide whether 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 person's testamentary intentions, extends to codicils that make changes to a will. The court had to consider the legislative history and definitions within the Act to determine the scope of section 14.

The court examined the language and legislative history of the Wills Act 2007 and concluded that section 14 was intended to cover all documents purporting to be testamentary dispositions, including codicils. The court found that the switch in language from "testamentary document" to "will" in section 14 was not intended to narrow its applicability. The court also noted that the legislative history, including the original Explanatory Note and a preceding Law Commission Report, supported the interpretation that section 14 was meant to cover changes to a will. The court determined that section 14 extends to documents that appear to make changes to a will.

After considering the evidence presented, including affidavits from the testator's widow, witnesses, and son, the court was satisfied that the three codicils expressed Mr Smith's testamentary intentions. The codicils were signed by the testator and witnessed by independent persons, and there was no evidence of confusion or lack of understanding regarding the contents of the codicils. The court also noted that all beneficiaries and affected parties had consented to the application.

The court granted the application and declared the three documents to be valid testamentary documents that effect changes to Mr Smith's will. The documents in question were a document headed "Codicil to be Attached to My Will", dated 28 November 2018 and signed on 29 November 2018; a document headed "Codicil to My Will", dated 29 November 2018 and signed on that day; and a document headed "Codicil to be Attached to My Will", dated 16 July 2019 and signed on 22 July 2019.

Orders