Estate of Sommerville

[2023] NZHC 2894

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-591

[2023] NZHC 2894

IN THE MATTER OF

Section 14 of the Wills Act 2007

AND

In the estate of YACOTH SOMMERVILLE (deceased)

BETWEEN

EVELINE RACHEL NELSON

Applicant

Hearing:	On the papers
Counsel:	P J Wright for Applicant
Judgment:	16 October 2023

JUDGMENT OF GRICE J

(Application for validation of a will: s 14 Wills Act 2007)

[1]    Ms Nelson, the daughter of the deceased, Mrs Sommerville, applies  under    s 14 of the Wills Act 2007 for the validation of a will executed by Ms Nelson under an enduring power of attorney (property) for her mother.

[2]    There are five children, four daughters and a son, four of whom were surviving at Mrs Sommerville’s death. All the surviving children consent to the order validating the will. The sibling who died has left one son, whom the surviving children wish to see take his mother’s share of the estate.

[3]    At the time of execution, it appears common ground that Mrs Sommerville was mentally incapable of making her will, due to her failing health. Ms Nelson did not

ESTATE OF Y SOMMERVILLE [2023] NZHC 2894 [16 October 2023]

show Mrs Sommerville the will, on the basis she would not have understood the reason to write a will.

[4]    Unfortunately, the power of attorney under which the will was executed did not give Ms Nelson any authority to make a will for Mrs Sommerville. Therefore, the will dated 1 December 2016 Ms Nelson made under the power of attorney is invalid.

[5]    Ms Nelson says that the will records what Mrs Sommerville’s wishes had been and her mother had told her that there was no need to write it down as Ms Nelson would ensure that her mother’s wishes were carried out.

[6]    Ms Nelson says that the documents submitted for validation are entirely consistent with the deceased’s testamentary intentions as expressed to her children during her lifetime. She submits that while the deceased did not know of the making of the will or see the executed will, the document should be recognised as reflecting the deceased’s testamentary intentions and be validated as the deceased’s will.

[7]    The intestacy rules under s 77 of the Administration Act 1969 would result in equal sharing of the deceased’s state between the surviving four children. However, the children wish to make a provision for a grandchild (the son of the deceased fifth child) and to do this would require a deed of family arrangement. That would provide for the estate to be divided five ways, with the grandchild taking a share instead of his mother.

[8]    While the intentions of Ms Nelson and her siblings are to ensure their nephew is treated fairly, the difficulty is that the provisions of the Wills Act allowing validation of wills in my view do not extend to validation of a will in these circumstances.

[9]    The will must be “made by a natural person”. While this may encompass, for instance, a person dictating a will to a third party, it does not extend to a will executed by a third party when the will-maker is unable to form the appropriate intention to make a will. The difficulty goes beyond the technical difficulties that s 14 of the Wills Act is designed to remedy, such as the will not being properly executed, not being in writing or not properly witnessed.

[10]   In the circumstances, the Court cannot exercise its discretion under s 14 of the Wills Act to declare the document valid. The application is dismissed.

Grice J

Solicitors:

Stainton Chellow, Auckland