Estate of Wade

[2024] NZHC 3570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-779

[2024] NZHC 3570

AN APPLICATION UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

The Estate of David Gordon Wade

BY

JOANNE BARBARA KAKE

Applicant

On the Papers
Counsel:	J W Tucker for the Applicant
Judgment:	27 November 2024

JUDGMENT OF GWYN J

Introduction

[1]                  The applicant, Joanne Barbara Kake, has made a without notice application under s 14 of the Wills Act 2007, for an order declaring a document to be a valid will. Ms Kake is the daughter of the deceased, David Gordon Wade, who died at Timaru on or about 14 July 2023.

How the document came to be

[2]                  The Court has received affidavits in support of the application from Ms Kake and Hugh Perry, of Timaru, solicitor, who prepared the document sought to be declared a valid will.

[3]                  The deceased had executed a will on 30 October 1981 (earlier will). The executors named in that will predeceased the deceased. The persons with a beneficial

RE THE ESTATE OF WADE [2024] NZHC 3570 [27 November 2024]

interest in the earlier will are Ms Kake and her siblings David James Wade, Sonya Marie Wade and Mellissa Helen Peneamene, who are the children of the deceased.

[4]                  Following a diagnosis of terminal cancer, on 6 July 2023 the deceased instructed his lawyer, Mr Perry, to prepare a new will which was to include such of his children, his stepchildren and his ex-wife living at his death as the residuary beneficiaries of his estate.

[5]                  Mr Perry prepared a new will for Mr Wade. Mr Perry’s evidence is that when he met Mr Wade on 6 July 2023 Mr Wade was clear, lucid and adamant in his instructions for the will. Mr Perry says those instructions are clearly reflected in the draft will he prepared. He has annexed his note of those instructions to his affidavit. Mr Perry had no communication with the deceased to indicate any change of mind or heart up to 13 July 2023 when he attended on him at his home with a view to having his will signed.

[6]                  Both Ms Kake and Mr Perry deposed that the deceased’s health declined rapidly, and he was not able to sign the new will as arranged, on 13 July 2023, his mental capacity being affected.

[7]                  The application relates to the new, unsigned will which was prepared in accordance with the deceased’s instructions. The unsigned will provides as follows:

(a)Joanne Kake is appointed as sole executrix and trustees and in substitution the deceased’s son David Wade, in the event Joanne was unable or unwilling to act.

(b)The estate was to be left equally between such of his children and stepchildren and his ex-wife as survived him.

(c)The deceased was to be cremated, with his ashes scattered as directed by his trustee.

The law

[8]                  Originating  applications  may be made  without  notice where  a ground  in   r 7.23(2)(a) of the High Court Rules 2016 applies and when all reasonable inquiries have been made and steps taken to ensure the application contains all relevant material.

[9]                  In “without notice” applications, all persons affected by the will must have a proper opportunity to be represented in the proceedings, including beneficiaries under the previous will.1 In Re the Estate of Campbell, the High Court found that the grounds in r 7.23(2)(a) for granting leave were made out where all persons who would be affected by the making of a without notice order under s 14 of the Act were aware of and had consented to the making of the order.2

[10]              Ms Kake’s affidavit exhibits the consents of all those persons who are affected by the application being herself, David James Wade, Sonya Marie Wade and Mellissa Helen Peneamene, the biological children of the deceased.

[11]              If this application under s 14 is granted, then further included as beneficiaries of the will be the following stepchildren of the deceased, namely Christopher Allan Wade of Christchurch, Aimee Louise Cameron (nee Wade) of Darfield, Rhys David Wade of Tinwald, and the deceased’s ex-wife Marie Patricia Wade of Timaru, retired. Ms Kake’s affidavit notes that the consent of the stepchildren of the deceased should not be required as it is to their advantage to be included in the new will, if approved under s 14.

[12]              I am satisfied that the interests of justice require the application to be determined without notice, given the consent of the only persons who have an interest in the will if the unsigned document is not declared valid. In those circumstances, unnecessary cost and delay would occur for no gain if the applicant were required to proceed on notice (taking into account the size of the estate which likely does not exceed $30,000).

[13]Section 14(2) of the Wills Act provides:

1      Re Hickford (2009) 34 FRNZ 159 (HC).

2      Re the Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [3].

(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.

[14]              I am satisfied that the three “gateway” considerations to the exercise of the Court’s power to validate wills under s 14 are met:3

(a)The document appears to be a will: I am satisfied the document appears to be a will. It contains the standard information generally contained in wills and is described by David Wade as his final will.

(b)The document does not comply with s 11: This is satisfied because   Mr Wade did not sign the document as required by s 11(3).

(c)The document came into existence in or out of New Zealand: This is satisfied because the document came  into  existence  at  Timaru,  New Zealand.

[15]              Given the gateway considerations are fulfilled, I go onto consider whether the will expresses Mr Wade’s testamentary intentions.

Does the document express the deceased’s testamentary intentions?

[16]              The Court requires cogent evidence that the unsigned document reflects the testamentary intentions of the deceased.4 The ordinary civil standard of proof of the balance of probabilities applies under s 14 of the Wills Act.5

[17]As Mackenzie J said in Re Campbell:6

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy.

3      See, for example, Gebert v Clay [2023] NZHC 1726 at [36].

4      Re Hickford, above n 1.

5      Re Campbell, above n 2, at [22].

6 At [18].

[18]              In Re Estate of Brown, similar circumstances existed to this case: the deceased had instructed Public Trust to prepare a will; a draft will was prepared, but the deceased died before he could sign the document.7

[19]              I am satisfied that this is an analogous situation, where instructions were given and a draft will prepared in accordance with those instructions, but the deceased was unable to sign the will due to deteriorating health and sudden death.

[20]              For the reasons discussed above, I am satisfied that the document sought to be validated does express Mr Wade’s testamentary intentions.

Outcome

[21]              I make an order declaring valid as the last will of David Gordon Wade the document annexed as Exhibit “E” to the affidavit of Hugh Matthias Barker Perry dated 12 November 2024.

Gwyn J

Solicitors:

Hugh Smith Perry, Timaru

7      Re Estate of Brown HC Auckland CIV-2010-404-6328, 13 October 2010.