Estate of Stuart

[2020] NZHC 529

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-142

[2020] NZHC 529

IN THE ESTATE OF MAXWELL BRUCE STUART

On papers
Judgment:	17 March 2020

JUDGMENT OF DOBSON J

[1]                 The originating application without notice for an order declaring a document to be a valid will under s 14 of the Wills Act 2007 has been referred to me.

[2]                 Some two days before his death, Maxwell Bruce Stuart (the deceased) completed in handwriting in blue biro a single sheet headed “My Will”. The heading was followed by a list of five Christian names against which percentages were recorded in figures. Underneath that was written “Lynda Share if she shall die before me then goes to her Husband Peter Andrew Srhoj”. The writing is then accompanied by a relatively legible signature of the deceased and his full name and  the date,     12 September 2019 (the September 2019 document).

[3]                 On 17 July 2017, the deceased had completed a will with the Public Trust. That will appointed the Public Trust to be the executor and trustee of the will and provided for specific gifts of personal effects and household goods, including any motor vehicles. The will then provided for gifts of the residue in defined percentages to the same five relations of the deceased as are nominated in the September 2019 document.

IN RE ESTATE M B STUART [2020] NZHC 529 [17 March 2020]

[4]                 The Public Trust has now brought this application seeking an order validating the September 2019 document as the last will of the deceased. The application is accompanied by consents completed by each of the five beneficiaries named in both the July 2017 will and the September 2019 document, albeit in different percentages.

[5]                 The September 2019 document does not qualify as a will under the Wills Act because it is not witnessed.

[6]                 I am satisfied that the September 2019 document should be validated as expressing the deceased’s testamentary wishes.

[7]                 However, it is incomplete to the extent that it does not appoint an executor or trustee of the will and does not make provision for distribution of personal effects.

[8]                 I consider the appropriate course is to validate the September 2019 document as a codicil to the July 2017 will, to be read so that the altered percentages for distributions to the five residuary beneficiaries are to apply as provided for in the September 2019 document.

[9]                 The definition of “will” in s 8 of the Wills Act is clearly broad enough to include a document that the author of it intends to operate as a codicil, rather than as a fresh will. In reliance on the breadth of that definition and the terms of s 14 of the Wills Act, the originating application is granted to give testamentary effect to it.

Dobson J

Solicitors:

The Office Solicitor, Public Trust