Estate of White

[2019] NZHC 3180

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-62

[2019] NZHC 3180

IN THE MATTER

of the estate of ALAN DOUGLAS WALKER

BRIAN TREVOR WHITE

Applicant

On the papers
Counsel:	D M Kerr for Applicant
Judgment:	4 December 2019

JUDGMENT OF THOMAS J

[1]                  Brian White has applied under s 14 of the Wills Act 2007 (the Act) for an order declaring a testamentary document the valid will of the late Alan Douglas Walker.

The documents

[2]                  Mr Walker made a will on 7 August  1984  (the Will).  The Will  appointed Mr White, Mr Walker’s cousin, and Frits Vink his executors and trustees. The Will gave the Queen Elizabeth II Army Memorial Museum (now the New Zealand National Army Museum) the right to select any items from Mr Walker’s collection of firearms, edged weapons, cartridges and associated items that it chose. Any remaining items were to be distributed to other like organisations. The residue of the estate was left to his mother and her husband, or the survivor of them. If neither survived, then the residue was left to Mr White and Ms Kay Ramsay in half shares.

[3]Mr Walker passed away. Both his mother and her husband predeceased him.

ESTATE WALKER [2019] NZHC 3180 [4 December 2019]

[4]                  A document was found in his home that was described as a will, but it was unsigned and not witnessed (the Testamentary Document). In the Testamentary Document, Messrs Colin Cardie, Brent Horton and Brian White were named as executors and trustees.

[5]                  Messrs Cardie and Horton were each left a firearm and accessory (or other item) of their choosing from Mr Walker’s collection as an expression of appreciation of a long friendship. The Hawkes Bay Antique and Historical Arms Association Inc (Hawkes Bay Historical Arms) was left a silver Perham Memorial Medallion and a gold-plated NZAHHA 50th anniversary medallion.

[6]                  Mr Walker directed that his collection of firearms, edged weapons, cartridges, medals, badges, literature, gunsmithing tools, ammunition, loading equipment and otherwise be given on trust to the Hawkes Bay Historical Arms to sell the items by auction. The proceeds were to be gifted on Mr Walker’s behalf to the three following organisations: 50 per cent to the NZ Council of  Licenced Firearms Owners  Inc;    25 per cent to the New Zealand Antique and Historical Arms Association  Inc; and 25 per cent to the Sporting Shooters Association (the Auction Beneficiaries).1

[7]                  In addition, the jewellery of Mr Walker’s mother was left to Mr White’s wife. The residuary of the estate was left to Mr White and his wife.

[8]                  Finally, the Testamentary Document noted that Mr Walker should be cremated and his ashes interred in the grave of his mother and her husband.

[9]No provision was made for Ms Ramsay in the Testamentary Document.

Objections

[10]              Initially Ms Ramsay refused to consent to the application. Her lawyer subsequently advised the Court that she “ha[d] withdrawn her instructions to do

1      The purpose of this gift was that it was to be used in support of the rights of New Zealand citizens to possess firearms with a special emphasis on firearms that required a Firearms Licence of either or both a C or E class endorsement in 2013.

anything”. On that basis, she is considered to no longer oppose the application. The National Army Museum consented to the application.

Analysis

[11]Section 14 of the Act 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.

[12]              For s 14 to apply, there must be a document, it must appear to be a will and it must not comply with s 11 of the Act.2 These matters are not at issue in the present application. The final requirement is that the Court must be satisfied the document expresses the deceased’s testamentary intentions. That is the question before me today.

[13]              The evidence before the Court suggests the Testamentary Document expresses Mr Walker’s testamentary intentions. There were five affidavits in support of the application.

2      I note the Testamentary Document was unsigned and not witnessed, clearly not complying with s 11 of the Act.

[14]              Mr Cardie, one of the trustees under the Testamentary Document, deposes that Mr Walker had discussed his “new will” with him. He specifically asked Mr Cardie’s permission to store his military collection with him after his death. He also noted that he wanted to sell his collection of firearms in an auction and that those profits would be split between the Auction Beneficiaries. This is all consistent with the Testamentary Document.

[15]              Mr Horton, the second trustee under the Testamentary Document, deposes that he was asked by Mr Walker to undertake this role. He records their good friendship. Mr Horton recalls that Mr Walker had at one stage, during a Hawkes Bay Historical Arms meeting, told the floor that his collection would be left to the Auction Beneficiaries. This differs slightly from the Testamentary Document, which records that those beneficiaries would be left the proceeds of an auction of his collection. This difference is not material. His evidence overall supports the claim that the Testamentary Document was consistent with Mr Walker’s testamentary wishes.

[16]              Ms Heather Matheson, who was involved with Hawkes Bay Historical Arms, deposes that she discovered the Will and Testamentary Document in Mr Walker’s home after his death. She notes that the handwritten Testamentary Document was “similar to” Mr Walker’s handwriting. She had a discussion with another person present about whether the handwriting was Mr Walker’s, and they obtained his handwritten firearms licence form (an exhibit to her affidavit) to compare. I accept the handwriting appears to be the same. Mr Walker’s firearms licence form also supports the accuracy of the Testamentary Document as it records that upon his death Mr Walker wanted his collection to be sold – something the Will did not provide for but the Testamentary Document did.

[17]              The affidavits from Mr Paul Shoebridge and Mr White record much the same information and support the claim the Testamentary Document  was  in  line  with Mr Walker’s testamentary wishes.

[18]              For completeness, as recorded above, I note that those potentially affected by the granting of the order have been contacted and either consent or do not oppose the

application.    Mr White, the applicant, is an executor under both the Will and the Testamentary Document.

Result

[19]              For these reasons I am satisfied that the Testamentary Document expresses Mr Walker’s testamentary intentions. Pursuant to s 14(2) of the Act I make an order declaring the Testamentary Document to be the valid will of Alan Douglas Walker.

Thomas J

Solicitors:

Hilden Law, Napier for Applicant