Estate of Whittaker

[2017] NZHC 2199

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV 2017-485-526 [2017] NZHC 2199

UNDER	the Wills Act 2007
IN THE MATTER	of the Estate of Frederick James Whittaker Deceased
BETWEEN	OLWEN CLARE WILLIAMS Applicant

Hearing:	11 September 2017 (Teleconference)
Counsel:	K M McMullen for Applicant
Judgment:	11 September 2017

JUDGMENT OF ELLIS J

[1]      Frederick James Whittaker died on 27 November 2016.

[2]      Mr Whittaker’s de facto partner of some 23 years, Ms Olwen Williams, has applied for an order pursuant to s 14 of the Wills Act 2007 (the Act) declaring an unexecuted and undated document to be Mr Whittaker’s valid will.

[3]      Cull  J  ordered  that  the  application  be  served  on  Mr  Whittaker’s  adult daughter, Ms Shelley Winks, who lives in the United Kingdom.   An affidavit of service has been filed.  Ms Winks was advised that she had 30 working days from that date of service to file any opposition to Ms Williams’ application.  That period has now passed; no steps have been taken.

[4]      Mr Whittaker’s estate is a relatively small one.  It comprises mainly his share

of the house he occupied with Ms Williams in Grovetown.

ESTATE OF FREDERICK JAMES WHITTAKER [2017] NZHC 2199 [11 September 2017]

[5]      Section 14 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.

[6]      In the present case the document sought to be declared a valid will does not comply with s 11.  It is a typed document which, on its face and in its terms, appears to be Mr Whittaker’s will.   But it is not signed, executed or dated.   It came into existence in New Zealand.

[7]      The evidence filed makes it clear that the document was initially prepared by Ms Williams on Mr Whittaker’s instructions and then amended (on advice) a short time before Mr Whittaker’s death.   Although his death was not unexpected, his decline at the end was so rapid that the “will” was never executed.

[8]      There is corroborating third party evidence which supports the contention that Mr Whittaker intended the document to be his will and that it reflected his testamentary intentions.  No other wills are in existence and, apart from Ms Winks and any children she may have, there appear to be no other persons potentially having an interest in the Estate.  Ms Williams is the sole beneficiary under the will,

although  it  records  Mr  Whittaker’s  “knowledge”  that  she  “will  provide”  for

Ms Winks.

[9]      In my view the requirements of s 14 are satisfied.

[10]     Accordingly,  I  order  that  the  document  marked  “B”  and  exhibited  to

Ms Williams’ affidavit dated 9 May 2017 constitute a valid will under s 14 of the

Act.

Rebecca Ellis J