Estate of Toomer

[2016] NZHC 1615

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-904 [2016] NZHC 1615

IN THE MATTER

of Section 14 of the Wills Act 2007

AND

IN THE ESTATE AND

of DIANNE FRANCES TOOMER

IN THE MATTER

of PATRICK EDWARD GALLAGHER Applicant

Hearing:	On the papers
Appearances:	C E Harris for Applicant
Judgment:	18 July 2016

JUDGMENT OF LANG J

[on application for orders as to validity of will]

This judgment was delivered by me on 18 July 2016 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RE ESTATE OF TOOMER [2016] NZHC 1615 [18 July 2016]

[1]      Ms Dianne Toomer died on 8 February 2016 at the age of 76 years.  She had been diagnosed with cancer just two months earlier, in December 2015.

[2]      Two days before her death, on Saturday 6 February 2016, Ms Toomer signed a document in which  she set out the manner in which she wished her estate to be distributed.   In the present proceeding Ms Toomer’s brother seeks an order under s 14 of the Wills Act 2007 (the Act) declaring the document that Ms Toomer signed on 6 February 2016 to be a valid will.

Background

[3]      At the time of her death Ms Toomer had a valid will dated 21 March 2001. This was held by Ms Toomer’s solicitor, and provided for Ms Toomer’s residuary estate to be divided as follows:

(a)       25 per cent to the Society for the Prevention of Cruelty to Animals

(SPCA).

(b)      25 per cent to the Salvation Army.

(c)       5 per cent to Ms Toomer’s brother, Rex Gallagher.

(d)      5 per cent to Ms Toomer’s brother, Patrick Gallagher.

(e)       The balance thereafter remaining to Ms Toomer’s daughter, Michelle

Patterson (Michelle).

[4]      In  early February 2016,  Ms Toomer’s  health  declined  rapidly.    Michelle travelled from her home in Perth to be with her mother, arriving in New Zealand on Wednesday 3 February 2016.  Shortly after her arrival, Ms Toomer told Michelle that she wanted to make changes to her existing will.

[5]      On  Friday  5  February  2016,  Ms  Toomer  asked  Michelle  to  contact  Ms Toomer’s solicitor so that she could draw up a new will.  Efforts during that day to have Ms Toomer provide her solicitor with instructions in relation to the new will

were not successful.  On Saturday 6 February, Ms Toomer decided to take matters into her own hands.  She asked Michelle to take down the terms of her new will and asked her neighbour, Ms Damaris Anderson, to come to the house and witness her signature.  Ms Toomer then signed the document in Michelle’s presence, but before Ms Anderson had come into the room.  Ms Anderson then signed the document as a witness a short time later.

[6]      The  document  that  Ms  Toomer  signed  on  6  February  2016  provides  as follows:

I, DIANNE TOOMER, being of sound mind want this to be my final wishes. I wish to make changes to my will as per below.

Patrick Gallagher and Michelle Patterson to be executors of my will.  I make the following bequests.

Salvation Army –  I would like to bequeath the sum of $10,000.00 (ten thousand dollars)

SPCA – I would like to bequeath the sum of $10,000.00 (ten thousand dollars)

Rex Gallagher – I would like to bequeath him the sum of $5,000.00 (five thousand)

Patrick Gallagher – I would like to bequeath him 20% of my estate.

The remaining balance of my estate is to be given to my daughter Michelle

Andrew Patterson.

Dianne Toomer	(signature)	6.2.16
Damaris Anderson	(signature)	6.2.16

[7]      Michelle  was  present  when  her  mother  signed  the  document,  and  has provided the Court with samples of her mother’s signatures to confirm that her mother did sign the document at the bottom of the page.

Jurisdiction

[8]      The Court may make an order declaring a document to be a valid will if it is satisfied that the document expresses the testamentary intentions of the deceased.  In deciding whether to make such an order the Court may consider the wording of the document,  evidence  as  to  the  manner  in  which  the  document  was  signed  and

witnessed, evidence as to the testamentary intentions of the deceased and evidence of any statements that the deceased may have made relevant to the issue.1

[9]      In  Re  Estate  of  Feron,  Whata  J  observed  that  a  robust  approach  to  the application of s 14 is required because it is a remedial provision requiring the courts to validate documents provided they plainly express the wishes of the deceased person.2    As a result, s 14 may be used in any case to cure technical non-compliance with the requirements of the Act.  I agree with that approach.

Decision

[10]     The SPCA, the Salvation Army and Rex  Gallagher are the  only persons adversely affected by the terms of the document signed by Ms Toomer on 6 February

2016.   Those parties have provided written confirmation they do not oppose that document being given effect as Ms Toomer’s last will.

[11]     The evidence, and in particular the wording used in the document, makes it plain that Ms Toomer intended the document she signed on 6 February 2016 to be her last will.  The document does not comply with the formal requirements of s 11 of the Act because there is only one witness, and that witness was not present when Ms Toomer signed the document.

[12]     I am satisfied that s 14 can and should be used to cure these aspects of non- compliance with the requirements of the Act.  I therefore make an order under s 14 of the Act declaring the document dated 6 February 2016 valid as Ms Toomer’s last

will and testament.

Lang J

Solicitors:

Jackson Russell, Auckland

1      Wills Act 2007, s 14(3).

2      Re Estate of Feron [2012] NZHC 3155 at [11].