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 documents that plainly express the testamentary wishes of a deceased person. Section 14(2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not from. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

[12]              This robust approach has also been applied in various Australian authorities dealing with difficult fact situations, but where the clear testamentary intentions of the deceased are deemed to outweigh any defects in form.3 By contrast, where the Courts have not been satisfied of testamentary intentions, the Courts have refused to accept the notes or draft will.4

[8]A similar approach has been applied in other cases in New Zealand.5

Relevant circumstances

[9]    In January 2018 Mr Taylor provided instructions to prepare a new will. A will was subsequently drafted in accordance with those instructions. Mr Donnell then met with Mr Taylor on 17 January 2018 to discuss the terms of the new will. At the end of the meeting Mr Taylor said he wished to consider the terms of the draft will that had been prepared.

[10]   On 22 January 2018 Mr Donnell received an email from Mr Taylor confirming his instructions reflected in the draft will. The will was then forwarded to him by

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

2      Re Estate of Murray [2912] 2 NZLR 546 (HC).

3     Estate of Blakely (1983) 32 SASR 473 (SC); Estate of TLB [2005] SASC 459, (2005) 94 SASR 450; Re the Will of Lobato (1991) 6 WAR 1 (SC); and Ryan v Kazacos [2001] NSWSC 140, (2001) 159 FLR 452.

4      Baumanis v Praulin (1980) 25 SASR 423 (SC); Estate of Schwartzkopff [2006] SASC 131, [2006]

94 SASR 465; and Re Application of Brown (1991) 23 NSWLR 535 (SC). See also Nicola Peart “Where there is a will, there is a way – a new Wills Act for New Zealand” (2007) 15 Waikato Law Review 26.

5      Re Taigel [2014] NZHC 884 at [26]–[28]; Re Estate of Brett Parker [2017] NZHC 415 at [32]– [33]; Re Estate of Donald Harvey [2019] NZHC 1202 at [9]–[13].

email on 12 February 2018 with a request for him to come in and sign it. However before he could sign the will the deceased died on 20 February 2018.

[11]   Mr Taylor had created an earlier will dated 20 December 2003. On that will are handwritten amendments that I accept are consistent with the change he subsequently wished to make. It is also significant that the estate is small in value amounting to approximately $90,000, and that the only other prospective beneficiaries, Mr Taylor’s children, have consented to these orders. On the basis of the applicant’s affidavit there are no other persons who appear to have a valid claim. It is also appropriate that Mr Taylor’s estate be received by his spouse.

[1]        I am satisfied on the above facts, and applying the relevant principles 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.

[2]Accordingly the application is granted in the terms sought.

Cooke J