Estate pf Taylor
[2025] NZHC 40
•3 February 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-760
[2025] NZHC 40
IN THE MATTER of section 14 of the Wills Act 2007 IN THE MATTER
of the Estate of John Richard Taylor
AND
IN THE MATTER
of an application by LEITH JUDY GUILD, EILEEN TANIA LEASK and NICOLA CATHERINE JONES
Applicants
Hearing: On the Papers Counsel:
D M Patel for Applicants
Judgment:
3 February 2025
JUDGMENT OF McQUEEN J
[1] Mr Taylor died on 4 January 2024. The applicants sought, without notice, an order pursuant to s 14 of the Wills Act 2007 declaring a document to be the valid will of Mr Taylor. The applicants also sought a direction as to whether the application should be served on two charities who may be affected by the application. Each of the applicants has filed an affidavit in support of the application.
[2] The applicants are Mr Taylor’s sister Ms Guild, his friend Ms Leask and his solicitor Ms Jones.
Estate J R Taylor [2025] NZHC 40 [3 February 2025]
Background
[3] Mr Taylor is survived by his sisters Ms Guild and Ms Dawn Nyberg. Mr Taylor never married and was not in a de facto relationship or civil union when he died. He did not have any children.
[4] Ms Guild explains that in the year preceding Mr Taylor’s death he was plagued by ill-health which resulted in him being hospitalised on more than one occasion. In December 2023, during a further hospitalisation, Mr Taylor advised that he wanted to instruct a solicitor to prepare enduring powers of attorney. Ms Leask recommended JAG Legal lawyers and arranged for Ms Jones to meet with Mr Taylor. Ms Jones met with him on 21 December 2023 at Wellington Public Hospital. Ms Jones explains that she spent approximately two hours with Mr Taylor that day providing advice to him on enduring power of attorney documents. His instructions to her were to appoint Ms Guild as attorney for his personal care and welfare and Ms Leask as his attorney for property matters. Ms Jones determined that Mr Taylor was in good spirits and had capacity to understand the nature and effect of the enduring powers of attorney documents.
[5] On that same occasion, Ms Jones says that Mr Taylor discussed with her his need for a new will. He told her that he had an old will which was held by his previous solicitor, Roger Hayman, of Hayman Lawyers in Wellington. He also explained that he had handwritten a new will at least 10 years ago to replace the will held by Hayman Lawyers. Ms Jones describes Mr Taylor as adamant that it was his intention that all previous wills, including the handwritten will, were to be revoked and replaced with his new will for which he had just given her instructions. Mr Taylor stressed multiple times that it was very important that his former solicitor was not the executor of his estate and had absolutely nothing to do with the administration of his estate. Ms Jones records that Mr Taylor explained that he had parted ways with his former solicitor many years before but never got around to instructing a new solicitor and had handwritten a new will just in case he died before he had the opportunity to provide instructions for a new will.
[6] Mr Taylor told Ms Jones that Ms Guild had provided a great deal of comfort and support to him for the past couple of years as well as caring for him following periods of ill-health. Mr Taylor’s instructions to Ms Jones were that he was very grateful for Ms Guild’s care and support, and he wanted to ensure that she was looked after and provided for following his death and that he wished to do this by leaving her his entire estate.
[7] Ms Jones annexes to her affidavit a copy of the notes that she took based on the instructions she received from Mr Taylor at this meeting. She confirms that she is clear as to the instructions she received from Mr Taylor about preparation of a new will and she believes that her notes are an accurate record of the instructions he gave at the meeting on 21 December 2023.
[8] Ms Jones prepared a draft will that reflected Mr Taylor’s instructions (the draft will). A copy of the draft will is annexed to her affidavit.
[9] Mr Taylor was discharged from hospital on 21 December 2023 and returned to his home. On 22 December 2023, Ms Jones spoke to Mr Taylor by telephone. Ms Jones advised that she had drafted a will for him to sign. Mr Taylor, not having email, asked Ms Jones to read out the draft will to him over the telephone. She did so and Mr Taylor confirmed that the draft will was an accurate reflection of his instructions and that he was happy to sign it as drafted without any changes. Mr Taylor emphasised that he wanted it on record that he revoked all previous wills and wanted to leave everything to Ms Guild. Ms Jones says that she was able to meet with Mr Taylor that day to sign the draft will, but he wanted to wait until after Christmas.
[10] Ms Guild stayed with Mr Taylor at his home to look after him and settle in as they were to have Christmas together. Ms Guild says that Mr Taylor discussed with her his meeting with Ms Jones, that he had given instructions for a new will and that Ms Jones had prepared one that he would sign after Christmas. Ms Guild describes Mr Taylor as very pleased with the outcome of his meeting with Ms Jones and that he said to her that she would be very comfortable and looked after when he died. Mr Taylor also told her that he had revoked all previous wills and that the will that Ms Jones had prepared was his new will. Ms Leask says that she also spoke to
Mr Taylor after he returned home and he told her he was happy with his meeting with Ms Jones and that he had given her instructions to prepare a new will for him that left his estate to Ms Guild as a thank you for all the care she had provided to him.
[11]Mr Taylor died on 4 January 2024 without signing his new will.
[12] Ms Guild and Ms Leask began clearing and tidying Mr Taylor’s home after his death. During this exercise, a will dated 3 June 2009, prepared by Hayman Lawyers, was located (the prior will). A copy of this will is attached to the affidavits from Ms Guild and Ms Leask.
[13] The prior will appoints Kaye Stirling and Roger Hayman as executors of the estate. The residue of Mr Taylor’s estate was to be given entirely to his mother, Ivy Taylor, should she survive him for 10 days. Ivy Taylor died on 6 May 2010, predeceasing Mr Taylor. The prior will provided that if Ivy Taylor did not survive Mr Taylor, Mr Taylor’s estate was to be distributed in equal shares to the Royal New Zealand Foundation of the Blind and the Asthma and Respiratory Foundation of New Zealand. The prior will makes no provision for Ms Guild.
[14] During the search of Mr Taylor’s personal papers, a handwritten document dated 2 April 2012 (the handwritten document) was discovered by Ms Guild. It is entitled “My will instructions—John Richard Taylor” and expresses a wish that if Mr Hayman is still Mr Taylor’s executor that Michael Chan take over as executor of Mr Taylor’s estate.
[15] A copy of the handwritten document is annexed to the affidavits of Ms Guild and Ms Leask. It records the following dispositions:
(a)individual envelopes containing an unknown gift to his sister Dawn Nyberg and her family;
(b)the balance of Mr Taylor’s bank accounts, shares and money held in Australia to Ms Guild;
(c)two fully equipped ambulances or one fully equipped ambulance and
two to three motorbike ambulances to Wellington Free Ambulance to be paid for from the sale of property; and
(d)specified shares and the sum of $20,000 from the sale of property to be held in trust for Mr Taylor’s niece Eve Nyberg and his nephew Ben Nyberg for schooling.
[16] The handwritten document does not specify what is to happen with the balance of the residue of the estate once these dispositions had been made. It does however comment on the difficult relationship between Mr Taylor and Ms Nyberg, indicating that the estrangement may have arisen at the time of their mother’s death.
[17] It appears that the search of Mr Taylor’s personal papers by Ms Guild and Ms Leask did not uncover any envelopes addressed to Dawn Nyberg or any of her immediate family members.
[18] Ms Guild and Ms Leask both believe that the draft will expresses Mr Taylor’s testamentary intentions as made known to Ms Guild and to Ms Jones on 21 and 22 December 2023.
Notice to beneficiaries under the prior will
[19] The applicants applied on a without notice basis on the ground that the application affects only the applicants. However, counsel for the applicants, Mr Patel, properly identified that the Court will usually, as a matter of procedural fairness, require that the beneficiaries of any valid prior will be notified of the application.
[20] As noted above, the prior will left the estate in equal shares to the two nominated charities. The applicants sought a direction from the Court as to whether this application for an order under s 14 of the Wills Act should be served on those charities, and if so, sought a direction that if either of the charities object to the making of the order sought, they must notify the Court in writing within 10 working days of service.
[21] If the application was to proceed without notice, I must be satisfied that all persons who may be affected by the draft will have had a proper opportunity to be represented in this proceeding. Here, the two charities are significantly affected, as they are now excluded from the draft will. In those circumstances, I considered it was appropriate for notice to be given to the charities.
[22]By minute dated 18 November 2024 I directed that:
(a)the applicants were to serve the application, affidavits and memorandum of counsel filed in support, together with my minute, on the Royal New Zealand Foundation of the Blind and the Asthma and Respiratory Foundation of New Zealand;
(b)if either the Royal New Zealand Foundation for the Blind or the Asthma and Respiratory Foundation of New Zealand objected to the making of the order sought pursuant to s 14 of the Wills Act, they were to notify the Court in writing within 10 working days of service; and
(c)the applicants were to file an affidavit confirming service of the proceeding on the Royal New Zealand Foundation for the Blind and the Asthma and Respiratory Foundation of New Zealand.
[23] I indicated that following the expiry of the 10-working day period, the Court would then further consider the application.
[24] On 29 January 2025 Ms Jones filed two affidavits confirming the above directions were followed.
[25] The charities have not objected within the 10-working day period, either by notice of opposition to the application or by notifying the Court of their objection in any other way. In the circumstances, I am satisfied that the charities have had a proper opportunity to be represented in this proceeding and have south to take it.
[26] I have considered whether any issue arises in relation to Mr Taylor’s other sister, Ms Nyberg. Ms Leask describes Ms Nyberg as her and Mr Taylor’s “estranged sister” with whom they have had no contact for many years.
[27] As Mr Patel points out, while the handwritten document makes some provision for Ms Nyberg and her family, an application pursuant to s 14 of the Wills Act would have to be made for that document to be validated as a will. I accept that during the eleven and a half years between Mr Taylor’s writing of the handwritten document and the preparation of the draft will Mr Taylor changed his mind about his testamentary intentions. I consider that the draft will supersedes the handwritten document and expresses Mr Taylor’s testamentary intentions immediately before his death. The existence of the handwritten document does not prevent the Court declaring the draft will to be a valid will.
[28] I am satisfied in the circumstances that it is not necessary to serve Ms Nyberg with the current application. Neither Ms Nyberg (nor members of her family) are beneficiaries under the prior will and they are not eligible to make a claim under the Family Protection Act 1955. The lengthy estrangement between Mr Taylor is addressed by Ms Guild in her affidavit and in the handwritten document. As I conclude below, I am satisfied that the draft will expresses Mr Taylor’s testamentary intentions.
[29] Given all affected parties from the prior will have been given an opportunity to be represented in this proceeding, I can now determine the application.
Does the draft will comply with the s 14 requirements?
Section 14 of the Wills 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.
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
[31] I am satisfied that the draft will appears to be a will, does not comply with s 11 of the Wills Act (as it has not been signed and witnessed as required) and came into existence in New Zealand.
[32] I may only make the order declaring the draft will to be valid if I am also satisfied that it expresses Mr Taylor’s testamentary intentions. To determine this, I can consider the draft will, evidence of Mr Taylor’s testamentary intentions and evidence of statements made by him.
[33] Mr Patel submits that the present case shares many similarities with previous successful cases where a will-maker has provided instructions to a solicitor to prepare a new will, a draft will is then prepared and sent or conveyed to the will-maker, and the will-maker dies before the new will based on their instructions can be executed.1
[34] I am satisfied that the notes written by Ms Jones during her meeting with Mr Taylor on 21 December 2023 are reflected in the draft will then prepared by Ms Jones and read to Mr Taylor by her over the telephone. The evidence appropriately explains Mr Taylor’s change in circumstances. His mother had died, and he wished to provide for Ms Guild because of her care and support in recent years. He no longer wished for Ms Stirling and Mr Hayman to be executors of his estate and he had attempted to rectify this through preparing the handwritten document. It is also the case that were the prior will to prevail, Ms Guild would be left without recognition,
1 Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551; Re Estate of Brundall [2011] 3 NZLR 528; Re Estate of Turner [2017] NZHC 1542; Re Estate of Braithwaite [2023] NZHC 198; and Re Estate of Ross [2023] NZHC 3681.
which is clearly not what Mr Taylor intended. I agree that Mr Taylor’s change in circumstances provides a logical explanation for his change in testamentary intentions.
[35] Accordingly, I am satisfied that the draft will appears to be a will and came into existence within New Zealand, does not comply with s 11 of the Wills Act. I am also satisfied that the draft will expresses Mr Taylor’s testamentary intentions.
Directions
[36]Accordingly, the application is granted.
[37] The document annexed and marked “B” to the affidavit of Nicola Catherine Jones dated 18 July 2024 is declared valid as the last Will of John Richard Taylor.
McQueen J
Solicitors:
JAB Legal, Lower Hutt for Applicants
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