Estate of Turner

[2017] NZHC 1542

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-001340 [2017] NZHC 1542

UNDER

Section 14 Wills Act 2007

AND

IN THE MATTER

of the Estate of the late AUDREY VERA TURNER

JUDY MAY HARVEY AND IAN JOHN HARDLEY

Applicants

On thepapers:
Appearances:	R O Parmenter for Applicants
Judgment:	5 July 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 5 July 2017 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

R O Parmenter, Auckland

Witten-Hannah Howard, Solicitors, Auckland

IN THE ESTATE OF AUDREY VERA TURNER [2017] NZHC 1542 [5 July 2017]

[1]      This is a without notice application for an order under s 14 of the Wills Act

2007 (the Act) declaring a draft will prepared by a solicitor to be valid as the will of the deceased, Audrey Vera Turner.

[2]      There is a preliminary procedural issue.   The application is made without notice.  A Judge is able to determine that an application can properly be dealt with without notice only if the Judge is satisfied that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant or the interests of justice require the application to be determined without serving notice of the application.  In the present case, the persons who would be affected by the making of the order sought are those who would benefit in terms of an earlier will made by Ms Turner and dated 8 October 2015, which would stand as Ms Turner’s will if the draft will is not declared valid.  All of those persons are aware of the application and have consented to the order sought.  In those circumstances, I am satisfied under r 7.46(3) that requiring the applicant to proceed on notice would cause undue delay and/or the interests of justice require the application to be determined without serving notice of the application.

[3]      Section 14 of the Act made quite a fundamental change to the law concerning the validity of wills.   Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid.  That meant that no matter how clearly the testamentary intentions of the deceased had been expressed, those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required.   Section 14 has been very beneficial in avoiding that outcome.

[4]      By an earlier will dated 8 October 2015, Ms Turner appointed Judy May Harvey and Ian John Hardley as executors and trustees of her will.   In the earlier will, Ms Turner made a specific bequest of her engagement ring, gold locket and silver bracelet to Ms Harvey.  In addition, she left the residue of her estate:

(a)       As to a 50 per cent share to Ms Harvey;

(b)      As to a 10 per cent share to her friend Susan Collier;

(c)       As to a 10 percent share to Alzheimers Auckland Charitable Trust; (d)         As to a 10 per cent share to St John Ambulance;

(e)      As to a 10 per cent share to Fred Hollows Foundation New Zealand;

and

(f)      As to a 10 per cent share to the Salvation Army of New Zealand.

[5]      On 13 February 2017, Ms Turner emailed the solicitor who had prepared her earlier will.  She stated:

Dear Sue

I wish to increase my bequest to Judy Harvey to $200,000.  Please accept this letter as my authority.   I have also asked Judy when this house is eventually  sold  to  take  any  of  the  contents  and  then  employ  a  house clearance contractor to dispose of the rest.  Her address is ….  I hope we can deal with this matter by correspondence.  Please phone me if necessary Ph

…. Many thanks

Audrey

[6]      The solicitor with whom Ms Harvey dealt with was Ms S M Howard of the law  firm Witten-Hannah  Howard.    Upon  receipt  of  the  email  from  Ms Turner, Ms Howard telephoned Ms Turner.  Ms Turner confirmed her wish to increase her bequest to Ms Harvey to $200,000.  Ms Turner had no children of her own and she spoke of Ms Harvey as being her daughter.

[7]      Ms  Howard  asked  Ms  Turner  how  she  was  keeping  and  she  responded brightly, but she said she had broken her leg last June and was not so mobile. As she knew Ms Turner was elderly, Ms Howard reassured her, advising her that she would prepare a draft will for her to read over and once all matters were in order she would go out to see her, taking a witness with her, if required.  Ms Turner lived in Te Atatu, a drive of approximately 45 minutes from Ms Howard’s offices in Takapuna.

[8]      At no time during their conversation did Ms Turner say she was unwell or required the will to be done as a matter of urgency.  On the contrary, she said she was

well.  Ms Howard made a brief note of the telephone conversation with her, which she annexes to her affidavit.

[9]      Based  on  Ms  Turner’s  email  and  the  discussion  with  her,  Ms  Howard prepared a draft will, which she annexes to her affidavit.  The draft will provides for a specific bequest of $200,000 to Ms Harvey.  The residuary beneficiaries remain the same.  Ms Howard is confident that the draft will reflects Ms Turner’s testamentary intentions as at the date of her death.  In the conversation Ms Howard had with her on 13 February 2017, Ms Howard was of the view that Ms Turner was perfectly lucid and was in no doubt that she knew exactly what which she was instructing her to do.

[10]     Two weeks later, on or about 27 February 2017, as Ms Howard was about to go and visit Ms Turner to have her execute the draft will, Ms Howard learnt that Ms Turner had died in the early hours of Sunday, 26 February 2017.

[11]     Ms Howard advises the Court that Ms Turner’s estate is relatively small and, certainly less than $200,000.  If the draft will is approved, it will, as a consequence, mean  that  there is  no  residuary estate to  go  to  the named beneficiaries.   As  a consequence, on 11 May 2017 Ms Howard’s firm wrote to the residuary beneficiaries and asked them if they would be agreeable to a without notice originating application to declare the draft will valid, with full disclosure that they, as named residuary beneficiaries, would not receive anything if the application was successful.  All five residuary beneficiaries have given their consent.

[12]     The draft will does not meet the requirements of a valid will because it has not been signed by the will-maker, nor has the will-maker’s signature been witnessed in accordance with the requirements of the Act.

[13]     The draft will prepared by Ms Howard is in all respects a conventional will containing all of the terms that one would normally expect to see included in will. The only reason it is not valid is that it is not signed and witnessed in the prescribed manner.    Before the Court  will  declare  an  unsigned  document  be valid,  it  will normally require cogent evidence that it reflects the testamentary intentions of the

deceased.   This reflects the obvious importance of a declaration that the Court is being asked to make.

[14]     Notwithstanding  the  fact  that  Ms  Turner  never  signed  the  will  that Ms Howard prepared, I have no doubt that it reflected her testamentary intentions as at the date of her death.  It reflects the written instructions that she gave Ms Howard just two weeks before her death.  The only reason that Ms Turner did not sign the will and have it witnessed in the prescribed form is that she died two weeks after giving written instructions to her solicitor.

[15]     I am therefore satisfied that it is appropriate to make an order under s 14(2)

declaring the draft will that Ms Howard prepared to be valid.

[16]     I therefore make an order under s 14(2) of the Wills Act 2007 declaring the draft will that Ms Howard prepared following the written instructions received from Ms Turner on 13 February 2017 valid as the last will and testament of Audrey Vera

Turner.

Woolford J