Estate of Stewart

[2019] NZHC 2267

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-500

[2019] NZHC 2267

UNDER

the Wills Act 2007, s 14

IN THE MATTER OF

the estate of Rita Alice Stewart

AND

LYNETTE SUSAN TILLMAN AND GRANT GAVIN STEWART

Applicants

Hearing:	11 September 2019 (On the papers)
Appearances:	C W Knowles for the Applicants
Judgment:	11 September 2019

JUDGMENT OF MANDER J

This judgment was delivered by me on 11 September 2019 at 3.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:     .

RE ESTATE OF STEWART [2019] NZHC 2267 [11 September 2019]

[1]                  The applicants, Lynette Tillman and Grant Stewart, seek a declaration pursuant to s 14 of the Wills Act 2007 (the Act) that a document be determined as the valid will of their mother, Rita Alice Stewart, who died on 8 July 2019. Mrs Stewart was not survived by a spouse or a de facto partner but had four children, the applicants and their siblings, Brenda Rolfe and Philippa Stewart.

[2]                  Mrs Stewart made a will dated 26 July 2017 (the 2017 will). However, she arranged for a later document to be prepared (the 2018 document). It is this document which is sought to be validated as Mrs Stewart’s will. Accompanying the substantive application to validate the 2018 document is an application for directions as to service and representation.

Background

[3]                  The 2017 will was prepared by a solicitor, Ms Monica Ryan, who was a partner at the firm Lane Neave. The will appointed Ms Ryan and Ms Tillman as Mrs Stewart’s executors. It provided that the executors would hold the estate on trust to pay debts, funeral and graveyard expenses, the trustees’ administration fees and expenses, and all duties payable on the estate. Once paid, the residue was to be divided amongst Mrs Stewart’s four children.

[4]                  Mrs Stewart decided that she did not wish to have Ms Ryan as an executor. On her mother’s instructions, Ms Tillman retyped the 2017 will. Apart from replacing Ms Ryan as an executor with her son Grant Stewart, the 2018 document reproduced the 2017 will verbatim.

[5]                  Mrs Stewart signed the 2018 document on 17 April 2018 before a Justice of the Peace. Unfortunately, her signing of the document was only witnessed by this one person.

[6]                  Following Mrs Stewart’s death, the executors contacted the firm of Helmore Stewart to arrange for probate. They were advised that as the 2018 document had only been witnessed by one person it would be necessary to apply to the Court to validate it as Mrs Stewart’s will.

The application

[7]Section 14 of the Act provides as follows:

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.

(3)The court may consider—

(a)the document; and

(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.

[8]                  The 2018 document clearly constitutes a “document” under s 6 of the Act. It appears to be a will, being effectively a facsimile of the 2017 will that recorded the disposal of Mrs Stewart’s property in the event of her death. The only difference is the change to one of the two executors; it clearly expresses Mrs Stewart’s testamentary intentions. The beneficiaries are the same, and in both the 2017 will and the 2018 document each shares equally in the residue of Mrs Stewart’s estate after payment of debts and expenses. The 2018 document came into existence in New Zealand.

[9]                  The beneficiaries named in the 2017 will and the 2018 document consent to the applications being made and have been advised of their right to seek independent legal advice. Each has elected not to do so and have acknowledged that they are fully aware of the effects of the orders being sought.

[10]              The only person who might be affected by the application is Ms Ryan of Lane Neave. However, she is not a beneficiary under the estate and her involvement in the

2017 will was limited to acting in her professional capacity as a nominated trustee. Ms Tillman has deposed that there are no other parties who might need to be served or have orders for representation made, and it is not apparent from the circumstances of the application that there are any other interested persons to whom the proceeding should be notified.

Orders

[11]              I am satisfied that the beneficiaries under the 2017 will all consent to the making of the interlocutory orders and that the excluded executor is a professional person who has no interest in the estate. There being no other person with a discernible interest in the application, service can be dispensed with. Each of the beneficiaries under both the 2017 will and the 2018 document have attained the age of maturity. No orders as to representation are required. Orders to this effect will issue.

[12]              Further, being satisfied that the requirements of s 14 of the Act have been satisfied, there will be an order declaring the document dated 17 April 2018, which has the appearance of a will and expresses the deceased’s testamentary intentions, to be the valid last will of Rita Alice Stewart.

[13]The costs of the application are to be met from the assets of the estate.

Solicitors:

Helmore Stewart, Rangiora