Estate of Taylor - [2019] NZHC 2305

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-537

[2019] NZHC 2305

IN THE MATTER of section 14 of the Wills Act 2007

AND

IN THE MATTER

OF THE ESTATE OF BRUCE CHARLES TAYLOR

Hearing: On the papers

Appearances:

R G Donnell for Applicant

Judgment:

13 September 2019

JUDGMENT OF COOKE J

[1] By originating application dated 4 September 2019 the applicant seeks the following orders:

(a)granting leave for this application to be made without notice to any other person;

(b)that the undated document, a copy of which is marked “B” and attached to the affidavit of the applicant filed in support of this application be declared valid as the last Will of the deceased.

[2] The application is supported by an affidavit from the applicant sworn 9 May 2019 and a memorandum of counsel dated 4 September 2019.

ESTATE OF BRUCE CHARLES TAYLOR [2019] NZHC 2305 [13 September 2019]

[3] The affidavit from the applicant exhibits formal consents to the orders sought from the prospective beneficiaries of the Estate of Bruce Charles Taylor, being his children Blair Taylor, Jordan Taylor, Erin Farr.

[4] In short the application is that an unexecuted will of Mr Bruce Charles Taylor, who died on 20 February 2018 before he was able to execute the will be treated as a valid will pursuant to s 14 of the Wills Act 2007. The applicant was Mr Taylor’s wife, and the other prospective beneficiaries, being the children have consented to the application.

[5] I am satisfied it is appropriate that the matter proceed without notice or service in accordance with r 7.23 of the High Court Rules 2016, particularly given that the relevant affected parties have all consented to the application in the way that I outline below.

Relevant principles

[6]Section 14 of the Wills Act 2007 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.

[7]That section has been applied in a number of cases. In Re Estate of Feron

Whata J held:1

[11] In Re Estate of Murray2 MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2305
Decision Date: 13 September 2019

CaseChat Overview and Summary

In the case of Estate of Bruce Charles Taylor, the applicant, who is the deceased's wife, seeks to have an undated document declared as the deceased's last will under section 14 of the Wills Act 2007. The deceased, Bruce Charles Taylor, passed away on 20 February 2018, before he could execute the will. The applicant's children, who are the prospective beneficiaries, have provided their consent to the application. The applicant argues that the undated document accurately reflects the deceased's testamentary intentions and should be recognised as his will. The legal issues before the court were whether the undated document expresses the deceased's testamentary intentions and if it should be recognised as his last will under section 14 of the Wills Act 2007. The court considered the evidence presented, including the affidavit from the applicant, the draft will, and the consent of the prospective beneficiaries. The court found that the draft will dated 9 May 2019, attached as Exhibit B to the applicant's affidavit, reflects the deceased's intentions and should be recognised as his will. The court granted the application in the terms sought, declaring the undated document as the deceased's last will. The final order declared that the undated document, a copy of which is marked “B” and attached to the affidavit of the applicant filed in support of this application, be declared valid as the last Will of the deceased.

Orders