Estate of Smith

[2022] NZHC 710

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000119

[2022] NZHC 710

UNDER THE

Wills Act 2007

IN THE MATTER OF

the Estate of KEVIN THOMAS DELMORE SMITH

AND

IN THE MATTER OF

An application by BARRY JOSEPH SMITH

Hearing:	On the papers
Judgment:	7 April 2022

JUDGMENT OF NATION J

[1]                  The applicant, Barry Joseph Smith (Barry) is the son of the deceased. He has applied without notice for an order declaring a solicitor’s signed will instruction sheet be declared a valid will. Barry was the youngest of five children born to the deceased Kevin Thomas Delmore Smith (Kevin) and his wife Margaret Catrina Tyler/Cowie (Margaret).

[2]                  Margaret and Kevin separated in 1980 and subsequently divorced. Margaret remarried. After the separation, Kevin had little, if any, contact with the four older children. He did have continuing contact with Barry who was 17 when Kevin and Margaret separated.

[3]                  Kevin made a will with the legal firm of Harmans in Christchurch, dated 16 October 1981, in which he left the whole of his estate, after costs, to his son Barry. Harmans have made appropriate enquiries. It appears there was no other earlier will.

Estate of Kevin Thomas Delmore Smith [2022] NZHC 710 (7 April 2022)

Kevin thought he might have made a will with the Public Trust. Repeated enquiries of the Public Trust by Harmans as to that have not brought any response.

[4]                  Kevin did not marry again after his divorce. He was not in any de facto relationship and did not have any other children.

[5]                  Kevin was aware that one of his daughters died on 2 July 2002. Another daughter died on 4 May 2021. Kevin did not know of this daughter’s death at the time he died.

[6]In 2021, Kevin was aged 94. He was living independently.

[7]                  On 13 August 2021, Barry contacted Mr Toomey, a partner at Harmans, and told him that his father was in hospital and wished to make a new will. Kevin had suffered a fall and had been admitted to Burwood Hospital for medical treatment.

[8]                  In an affidavit, Mr Toomey said he visited Kevin at Burwood Hospital at around 11.30 am on 16 August 2021 and took instructions from Kevin as to a new will. Kevin had remembered Mr Toomey from contact they had in the 1980s.

[9]                  Kevin told Mr Toomey of the circumstances of his separation, his ex-wife leaving and taking the four older children, but leaving him with Barry. Kevin said Barry had provided Kevin with much support over the years. Kevin had no contact with the other children since the separation. He wanted to leave Barry with the majority of his estate, which comprised his home, and the balance of his estate to his other children who were alive at the time of his death. All this was consistent with a note Mr Toomey made at the time.

[10]              Mr Toomey said he discussed with Kevin his moral obligation towards other children and advised him that disparity in treatment between his children could give rise to a claim against the estate. Mr Toomey said Kevin understood the risk but was indecisive on what he would leave the three other children who, at that time, he thought were all still alive. Mr Toomey suggested Kevin take some time to think about his decision and told Kevin he would come back to take further instructions. Mr Toomey

said Kevin was clear and concise. There was no indication that Kevin was dying or suffering any mental impairment.

[11]              On 17 August 2021, Mr Toomey visited Kevin again in hospital after Barry had told Mr Toomey that Kevin was ready to finalise the instructions of his will.

[12]              Mr Toomey again saw Kevin alone. Mr Toomey said, on his arrival, Kevin was coherent, remembered their conversation from the previous day and the reason he had not given Mr Toomey complete instructions at that time. Kevin confirmed he had sufficient time to think about matters further and wished to provide instructions to him.

[13]              Kevin again mentioned that, other than Barry, he had nothing to do with the other children since his ex-wife had taken them with her when they separated. Kevin said he wished to leave his house to Barry, and money in his bank accounts was to be given equally to his other children who survived him, excluding Barry. Kevin did not wish to provide a gift over to his grandchildren if one of his children pre-deceased him.

[14]              Kevin said this was a fair reflection of all Barry had done for him during his life and that, in his mind, by leaving his other children something, he had satisfied any obligation he felt to them.

[15]              Mr Toomey then completed a wills information sheet with Kevin. Once Kevin was happy with the contents of the document, Kevin signed it and Mr Toomey witnessed his signature. A copy of the wills information sheet was attached to Mr Toomey’s affidavit.

[16]In the wills information sheet, Kevin instructed that:

(a)        Barry was to be appointed as his executor and trustee;

(b)        he had made a will with Harmans and perhaps another with the Public Trust;

(c)        out of the residue, the house be given to Barry;

(d)        out of the residue, all other assets to be divided equally between the four children other than Barry, as should survive him; and

(e)        if one of those four named children had died, their share was to go to the others that did survive him.

[17]              Mr Toomey had planned to prepare Kevin’s will in accordance with the contents of the will information sheet and bring it back to Kevin for signing. However, New Zealand went into a national COVID-19 level 4 lockdown at 11.59 pm on 17 August 2021. Kevin passed away on 31 August 2021 during the period of the level 4 lockdown and before Mr Toomey could visit him with a new will.

[18]Barry estimates that his father’s estate consists of:

(a)        his home, which has a current rating valuation of $350,000;

(b)          funds in his bank accounts of approximately $130,000;

(c)        a 2012 Rav 4 motor vehicle and furniture; and

(d)        less estate costs.

[19]              Section 14 of the Wills Act 2007 confers on the High Court a discretionary power to make a declaration if the Court is satisfied that a document expresses the deceased person’s testamentary intentions. The section is concerned with substance, not form. A robust approach is called for. The Court has a broad power to consider evidence of the deceased’s testamentary intentions and of statements made by the deceased person.1 In Re Estate Campbell (dec’d), Mackenzie J referred to the remedial purpose of s 14 of the Act:2

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which

1      Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.

2      Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706, at [18].

would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

[20]              I am well satisfied that the wills information sheet, signed by Kevin and witnessed by Mr Toomey, expresses Kevin’s last testamentary intention. I recognise the care Mr Toomey took to make sure that Kevin was clear as to what he wanted to do with his will and also the way COVID-19 lockdown restrictions led to him not signing a formal will as he had wanted to do.

[21]              I am also satisfied it was appropriate for this application to proceed on a without notice basis in that the granting of the order will not adversely affect any persons other than the applicant.

[22]              I make an order that the wills information sheet, signed by the deceased on 17 August 2021, a copy of which was exhibited to the affidavit of Jerome Anthony Toomey, sworn on 1 April 2022, and marked “C”, is declared a valid will of the deceased.

Solicitors:

Harmans Lawyers, Christchurch.