Estate of Wells

[2012] NZHC 74

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV2011-425-000634 [2012] NZHC 74

IN THE MATTER OF     Estate of PETER DAVID WELLS

BETWEEN  ROBERT JOHN DALEY AND NEIL ANTHONY DOUGLAS

Applicants

Hearing:         (On Papers)

Counsel:         S Gilmete on behalf of P R Adams (Counsel for Applicants) Judgment:  16 February 2012

JUDGMENT OF WHATA J

[1]      Robert John Daley and Neil Anthony Douglas apply for orders that certain documents are valid codicils to Peter David Wells’ will dated 15 August 2002.  The application is made under s 14 of the Wills Act 2007.   That section provides that I may declare a document to be valid if:

(a)       It appears to be a will;

(b)       Does not comply with s 11; and

(c)       I am  satisfied  that  the  document  expresses  the  deceased  person’s

testamentary intentions.

[2]      I consider that I am able to deal with this matter succinctly as all legatees and residuary beneficiaries named in the will have consented to the application being made.  The robust approach taken to this application was adopted by me in Estate of

T  G Feron  [2012]  NZHC  44,  referring to  the  essay of  authorities  provided by

Estate of P D WELLS HC INV CIV 2011-425-000634 [16 February 2012]

MacKenzie J in Re Estate of Murray.[1]   There is also Australian authority supporting such an approach in this case.[2]

[1] Re Estate of Murray HC Masterton CIV 2011-435-000178, 20 December 2011.

[2] Estate of Blakely (1983) 32 SASR 473; Estate of TLB (2005) 94 SASR 450; In the Matter of the

Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1; Ryan v Kazacos (2001) 159 FLR 452.

[3]      The salient background is that a number of notes were left on the kitchen table in the deceased’s house and found on the morning after his suicide. Some of these notes  were signed  and  dated while others  were dated with  specific times endorsed.  The notes were not witnessed.  While the notes are in a various state of legibility, they plainly purport to:

(a)       Dispose of the deceased’s property; and

(b)       Identify the person responsible for managing the estate; and

(c)       Address his funeral arrangements.

[4]      There is a complication in that the notes refer to John Auld and Bob Daley as trustees and executors.  The applicants believe the deceased had forgotten that under his 2002 will he had appointed the applicants as executors and trustees, removing John Auld.   Applicants’ counsel also contends that the deceased was only giving instructions to his lawyer to pay his trustees for all work carried out under the estate rather than revoking the positions of the applicants.  There must be some conjecture about all of this given that we can really only speculate what was in the mind of the deceased when he wrote the relevant notes.  It does raise a doubt about whether the notes or the applicants’ interpretation of them properly and clearly evince the intentions of the deceased for the purposes of s 14.

[5]      Nevertheless,  I  am  prepared  to  accept,  given  the  consent  of  all  affected persons, and the context within which the notes were written that on the balance of probabilities, the notes, with the exception of the apparent mistake about trustees, should be declared valid.  I record that Mr Auld has also stated that he does not want

to be appointed as an executor.

[6]      Given the foregoing  I make the declaration of validity as sought by the applicants in this proceeding. I am fortified in this view given that the existing will was to be subject to the administration of the applicants and, as I say, all of the relevant beneficiaries have consented to the changes.   Overall therefore, the underlying purpose of s 14 is achieved.

Solicitors:

Ward Adams Bryan-Lamb, Invercargill (P R Adams) (Counsel Acting: S Gilmete)