Estate of Wells

[2021] NZHC 1

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001354

[2021] NZHC 1

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of an application by RAEWYN WELLS for an order that a document be declared the valid Will of the deceased CHARLES

HALKETT RATCLIFFE

Applicant

On the papers
Counsel:	J M Skinner and E W Davies for the Applicant
Judgment:	5 January 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 5 January 2021 at 11.00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Wells In the Estate of C H Ratcliffe [2021] NZHC 1 [5 January 2021]

Introduction

[1]                 Charles Halkett Ratcliffe died on 1 January 2020. About eight months before his death, on 8 April 2019, Mr Ratcliffe had signed an informal will. The will was handwritten. It was informal in that Mr Ratcliffe’s signature was not witnessed.

[2]                 In the will Mr Ratcliffe said that on his death he would like Raewyn Wells to be the executor of his affairs. Ms Wells had been Mr Ratcliffe’s de facto partner until his death. They had been in a relationship for 19 years.

[3]                 Ms Wells has applied for an order under s 14 of the Wills Act 2007 that the informal will be declared valid. She has applied without notice. All of Mr Ratcliffe’s five children have provided affidavits in support of Ms Wells’ application.

Background

[4]                 Mr Ratcliffe has five biological children, all adults. In addition, Ms Wells has a son (also adult) who Mr Ratcliffe treated as his son.

[5]                 Mr Ratcliffe had made two earlier wills. On 29 May 2012 he made a formal will appointing Public Trust as his executor, and gifting the residue of his estate to Ms Wells if she should survive him by 30 days, or to his grandchildren if she did not. On 9 August 2012 he made a further will appointing his son Keith Ratcliffe as his executor, and gifting most (but not all) of his assets to Ms Wells (or to his children if she predeceased him). The 9 August 2012 will does not appear to have been witnessed.

[6]                 Before Mr Ratcliffe’s death, Ms Wells had numerous discussions with him about his will. Mr Ratcliffe told Ms Wells that he wanted his life insurance and other assets to go to her, and that all his children were already provided for.

[7]                 Mr Ratcliffe wrote and signed the 8 April 2019 will himself.   He showed   Ms Wells the will, and told her that she would be provided for. He said he would keep the will on his desk in their bedroom.

Proceeding without notice

[8]                 Ms Wells made her application without notice. Counsel submits that this is appropriate because “the relevant parties, being the deceased’s children have all consented to the application”.

[9]                 In my view it is in the interests of justice that the application be made without notice.1 This is not only because all of Mr Ratcliffe’s children have consented to the application (evidenced by their affidavits in support), but because (i) it appears from the affidavits that the assets of Mr Ratcliffe’s estate are modest and (ii) this is a clear case for validation under s 14.

The legal framework

[10]             Section 14 of the Wills Act confers on the Court power to declare an informal will valid. It provides:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(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.

(3)The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

1      HCR 7.23(2) (incorporated by HCR 19.10).

[11]             Under s 14(1) the key question in this case is whether the 8 April 2019 will “appears to be a will”. This requires consideration of s 8:

8        Meaning of will

(1)Will means a document that—

(a)is made by a natural person; and

(b)does any or all of the following:

(i)disposes of property to which the person is entitled when he or she dies; or

(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or

(iii)appoints a testamentary guardian.

[12]             Whether a document “appears to be a will” depends, in a case like this (where the document was made by Mr Ratcliffe), on whether the document appears to do one or more of the things set out in s 8(1)(b).2 If a document “appears to be a will” and therefore passes through the s 14(1) gateway, under s 14(2) the Court “may”, if it is satisfied that the document expresses the deceased’s testamentary intentions, declare the document valid. An applicant under s 14 bears the onus of proving, on the balance of probabilities, that a document appears to be a will and that it expresses the deceased’s testamentary  intentions.3  The Court may consider  the matters set out in s 14(3).

[13]             The “may” in s 14(2) means that the Court has a discretion whether to make the order. There is authority that that discretion is residual: if the applicant establishes the prerequisites of ss 14(1) and (2), the Court should ordinarily declare the document valid.4

Section 14(1): does the 8 April 2019 will appear to be a will?

[14]             The 8 April 2019 will appears to be a will, because it appears to do two of the things set out in s 8(1)(b). It disposes of property to which Mr Ratcliffe was entitled

2      Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].

3 At [22].

4      Caird v Caird [2018] NZHC 1605 at [78].

when he died. It also appoints Ms Wells as Mr Ratcliffe’s executor. The document therefore passes through the s 14(1) gateway.

Section 14(2): does the 8 April 2019 will express Mr Ratcliffe’s testamentary intentions?

[15]             I am satisfied that the 8 April 2019 will expresses Mr Ratcliffe’s testamentary intentions. This is clear from:

(a)The language of the document itself. Mr Ratcliffe expressed that “on my death” he wanted Ms Wells to be his executor, and wanted certain of his assets left to her.

(b)Mr Ratcliffe having written the will himself, and then signed it.

(c)Ms Wells’ evidence that Mr Ratcliffe had made it clear that he wanted his assets to be left to her. This is consistent with the document.

(d)Ms Wells’ evidence that Mr Ratcliffe said he would keep the will on his desk.

Should I validate the 8 April 2019 will?

[16]             Ms Wells has established the prerequisites of ss 14(1) and (2). In such circumstances the Court should ordinarily declare the document valid. I am of the clear view that  I should  do so.  I  am  reinforced in  that view by the support  of   Mr Ratcliffe’s five children for Ms Wells’ application.

Result

[17]             I declare, under s 14 of the Wills Act 2007, that the will of Charles Halkett Ratcliffe dated 8 April  2019 (a copy of which is exhibited as  annexure “C” to     Ms Wells’ affidavit dated 10 June 2020) is valid.

Campbell J