Estate of Smith
[2022] NZHC 1361
•9 June 2022
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 legislative history provides some explanation. When introduced, s 14 was expressed in terms not of a will but of a testamentary document. Section 8 would have expanded “will” only to the extent of saying it included a codicil.2 The terminology
1 Re Prince [2012] NZHC 1058; and Re Stuart [2020] NZHC 529.
2 Wills Bill 2006 (78-1), cls 8(4) and 14(1).
changed, however, consequent on the Report of the Justice and Electoral Committee which urged the use of simplified terminology.3 In s 14 testamentary document became will and s 8 included the expanded definition.
[7] It is apparent from the history that s 14 was intended to cover all documents purporting to be testamentary dispositions. The switch in language to “will” was not intended to narrow its applicability. This is consistent with the original Explanatory Note which said of s 14 that it covered changes to a will. It is also consistent with the preceding Law Commission Report where the equivalent provision to s 14 expressly included “amendments to a will”.4
[8] Within the Act, s 15 (changes) and s 16 (revocations) include resort to s 14. This points to a legislative intention for s 14 to be available to all dealings with testamentary documents.
[9] Finally it can be noted that this interpretation still leaves s 8(2) and the narrower definition of will with some role. There are several sections in the Act that expressly use the terms identified in s 8(2), and indeed s 9 is headed:
Persons who make, change, revoke and revive wills
[10] It follows from this analysis that s 14 extends to documents that appear to make changes to a will.
The present case
(a) Evidence
[11] Mr Smith made his will on 11 July 2013. It was prepared by his lawyers and validly executed. On three subsequent dates he signed documents which were headed “Codicil to be Attached to My Will” or on one occasion “Codicil to My Will”. The relevant dates are 28 November 2018, 29 November 2018 and 16 July 2019. Each document is signed by the testator and witnessed by one independent person.
3 Wills Bill 2006 (78-2) (select committee report) at 1.
4 Te Aka Matua o te Ture | Law Commission Success Law: A Succession (Wills) Act (NZLC R41, 1998) at 18–19.
[12] Affidavit evidence has been filed from the testator’s widow, and the two witnesses. Mrs Smith says she typed all three documents at Mr Smith’s direction. Mr Smith dictated the wording which Mrs Smith faithfully recorded. On the first two occasions she organised for the witness who was a neighbour and friend of Mr Smith to attend. On the third occasion Mr Smith organised the witness who was also a friend of Mr Smith. Mrs Smith was not present when the codicils were signed.
[13] Mrs Smith confirms she discussed the contents of the codicils before they were signed, and also subsequently. She confirms her belief they reflect Mr Smith’s constant testamentary intentions. Mr Smith’s son deposes he discussed the first codicil with his father, and he is sure his father understood its import and it was his intention.
[14] The witnesses to the codicils each confirm Mr Smith signed the documents in their presence as did they in his presence. Finally, by way of evidence, it can be noted everyone who benefits under the will or codicil documents, or is otherwise affected by the changes, has indicated consent to the application.
(b) Analysis
[15] Section 14 requires the Court to be satisfied that the document expresses the deceased person’s testamentary intentions.
[16] The documents in themselves amend the will in a manner that accurately reflects the existing content of the will. There is no evidence of confusion. The first codicil has the most effect and is the most detailed. Its effect is to reallocate a 25 per cent share previously left to his daughter into five parcels of five per cent shares, now allocated to the daughter, her husband and their three children. The reasons for the change are clearly explained. The same can be said of the second and third codicils.
[17] There is no reason from the documents themselves to doubt they reflect Mr Smith’s testamentary intentions. Further, the manner of execution, although not fully compliant with the Act, nevertheless reflects a clear recognition of the nature of the document and its intended effect. This, along with the evidence of Mrs Smith, satisfies me the documents express Mr Smith’s testamentary intentions.
Orders
[18] Leave is given to commence the proceeding by way of originating application. I declare the documents that are the subject of the application to be valid testamentary documents that effect changes to the Will of Mr Smith dated 11 July 2013.
[19]The documents are:
(a)a document headed “Codicil to be Attached to My Will”, dated 28 November 2018 and signed on 29 November 2018;
(b)a document headed “Codicil to My Will”, dated 29 November 2018 and signed on that day; and
(c)a document headed “Codicil to be Attached to My Will”, dated 16 July 2019 and signed on 22 July 2019.
Simon France J
Solicitors:
Shanahans Law Ltd, Auckland for Applicant
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