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…

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: [2024] NZHC 3570
Decision Date: 27 November 2024

CaseChat Overview and Summary

Joanne Barbara Kake applied to the High Court of New Zealand under Section 14 of the Wills Act 2007 to declare a document as the valid will of her father, David Gordon Wade, who passed away on or about 14 July 2023. The document in question was an unsigned will prepared by Wade's solicitor, Hugh Perry, on 6 July 2023, shortly after Wade was diagnosed with terminal cancer. The document outlined Wade's intentions to leave his estate equally among his children, stepchildren, and ex-wife. The application was made without notice, as all relevant parties, including the beneficiaries under Wade's previous will, had provided their consent.

The court had to determine whether the unsigned document could be declared a valid will under the Wills Act 2007. The legal issues included whether the document complied with the statutory requirements for a will, specifically the signing requirement, and whether the document reflected Wade's testamentary intentions. The court also needed to assess whether the application could proceed without notice, given the consent of the affected parties and the potential for unnecessary cost and delay.

The court found that the unsigned document met the statutory requirements for a will, despite not being signed by Wade. The court considered the document to be a will based on its content and description, it did not comply with the signing requirement, and it was created in New Zealand. Furthermore, the court found that the document expressed Wade's testamentary intentions based on the evidence provided by Kake and Perry. The court noted that this was an analogous situation to previous cases where the court had validated unsigned wills. Therefore, the court concluded that the document was a valid expression of Wade's intentions and made an order declaring it to be his last will.

In summary, the High Court granted the application and declared the unsigned document to be the valid last will of David Gordon Wade.

Orders