Estate of Watson

[2024] NZHC 3419

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-093 [2024] NZHC 3419

IN THE MATTER

of the estate of MARK THOMAS WATSON

ESTHER GODEFRIEDA VRIEZE

Applicant

Hearing:	On the papers
Counsel:	J A McAra for Applicant
Judgment:	18 November 2024

JUDGMENT OF McHERRON J

Application to have Mr Watson’s will declared valid

[1]    Esther Vrieze and Mark Watson were in a de facto relationship from about 2000. They had four  children  together,  Benjamin,  Lara,  Gemma  and  Thomas. Ms Vrieze also has a child from a  previous relationship,  Tobias.  Ms Vrieze  and Mr Watson both signed wills on 24 October 2001, drafted by their solicitors on their instructions. Each appointed the other executor of their respective estates, and:

(a)Ms Vrieze left $40,000 to each of her living children when they attain 25 years, with the rest of her estate going to Mr Watson if he survived her by seven days. If he did not, then the rest of her estate would be divided equally among her children living at her death and who reach the age of 25 years.

(b)Mr Watson left his entire estate to Ms Vrieze if she survived him by seven days. If not, then the estate would be divided equally between

ESTATE OF WATSON [2024] NZHC 3419 [18 November 2024]

each of Mr Watson’s children and Tobias living at his death and who reach the age of 25 years.

[2]    Ms Vrieze and Mr Watson married on 2 December 2007. Mr Watson died on 7 January 2024.

[3]    According to s 18(1) of the Wills Act 2007,1 a will is revoked if the will-maker marries. Under that provision, Mr Watson’s 2001 will would have been revoked by the 2007 marriage. However, s 18(3) provides that s 18(1) does not apply if “the will does not expressly say that it is made in contemplation of a particular marriage…but the circumstances existing when it was made show clearly that it was made in contemplation of a particular marriage” and the marriage that occurs is the contemplated one. If s 18(3) applies, Mr Watson’s 2001 will would be valid.

[4]    Ms Vrieze has applied to have Mr Watson’s will declared valid. The main asset in Mr Watson’s estate is a residential property in Hastings at which Ms Vrieze and the four youngest children reside.

[5]    Ms Vrieze has given an affidavit in which she says that at the time she and Mr Watson signed their wills they contemplated that they would marry each other. Despite this, neither of their wills is expressed to be in contemplation of marriage to the other. In her affidavit, Ms Vrieze says that she and Mr Watson did not realise that their wills would lapse once they married. That is why they did not prepare new wills upon their marriage to one another.

[6]    In Ms Vrieze’s affidavit, she confirmed that all of Mr Watson’s adult children consent to the application and would be happy to provide written consents if required by the Court. In my minute of 18 October 2024, I asked for such written consents to be provided. Those consents have now been supplied. In the circumstances, I agree with Ms Vrieze that it is not necessary for her youngest child Thomas, who lives at home with Ms Vrieze, to have a litigation guardian appointed.

1      The Wills Act 2007 came into force on 1 November 2007. As far as is relevant, s 18 applies to Mr Watson’s will even though it was made before that date; see s 40.

My assessment

[7]    I have carefully considered the documents filed in support of the application and all the circumstances outlined in Ms Vrieze’s affidavit. While Mr Watson’s will does not expressly say that it is made in contemplation of his marriage to Ms Vrieze, I am satisfied that the circumstances existing when the will was made show clearly that the will was made in contemplation of his subsequent marriage to Ms Vrieze. In particular, I consider the following circumstances indicate that Mr Watson’s will was made in contemplation of his marriage to Ms Vrieze:

(a)the fact that Mr Watson and Ms Vrieze had been in a de facto relationship for about a year before Mr Watson signed his will;

(b)the fact that Ms Vrieze signed a will on the same day as Mr Watson signed his will. While the two wills do not exactly mirror each other, because they provide differently for the children, each of Ms Vrieze and Mr Watson provides for the other in a way that reflects they intended their relationship to be enduring. It is noteworthy that Mr Watson also provides for his stepson Tobias in his will (if Ms Vrieze did not survive him). The wills are therefore consistent with being made in contemplation of Ms Vrieze and Mr Watson’s marriage to one another;

(c)Ms Vrieze’s evidence that the preparation of their wills was in contemplation of marriage despite the wills not expressly stating so; and

(d)Ms Vrieze’s evidence that she did not realise their wills would lapse upon marriage.

Conclusion

[8]    Accordingly, pursuant to s 18(3) of the Wills Act, I conclude that Mr Watson’s will shows clearly that it was made in contemplation of his marriage to Ms Vrieze, a marriage that occurred in 2007 and remained in place until Mr Watson died.

[9]I:

(a)dispense with the need for service of Ms Vrieze’s application; and

(b)declare that Mr Watson’s will dated 24 October 2001, a copy of which was provided with Ms Vrieze’s application, is valid.

Application for probate can be in common form

[10]   Ms Vrieze’s statement of claim also seeks an order that probate of Mr Watson’s will be granted in solemn form. She seeks directions as to who should be named as respondents to the application for probate in solemn form.

[11]   As I have declared Mr Watson’s will to be valid, Ms Vrieze can apply for probate in common form. Therefore, her application for probate in solemn form is unnecessary.

[12]   Ms Vrieze should now apply under r 27.4 of the High Court Rules 2016 for a grant of probate using form PR1AA with the appropriate affidavit. Ms Vrieze should note that the application should be filed in the Wellington Registry, rather than the Napier Registry, in accordance with r 27.10(1). To assist the probate section in the Wellington High Court, a copy of this judgment should be filed with the application for probate.

McHerron J

Solicitors:
Gresson Grayson, Hastings for Applicant