Fraser (Deceased) HC Napier CIV-2011-441-700

[2011] NZHC 1806

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-700

UNDER  The Wills Act 2007

IN THE MATTER OF     The Estate of Warren Edward Fraser

Counsel:         D H McDonald

Judgment:      20 December 2011 at 3:45 PM

I direct the Registrar to endorse this judgment with a delivery time of 3.45pm on the

20th day of December 2011.

JUDGMENT OF MACKENZIE J

[1]      This is an interlocutory application without notice for an order under s 14 of the Wills Act 2007 declaring a document valid as the last will of the deceased.  There is  also  before  the Court, for separate  consideration,  an  application  for  grant  of probate of that document, if the order under s 14 is made.

[2]      The preliminary question for consideration is whether this application may properly be dealt with on a without notice basis.  Rule 7.46 of the High Court Rules applies.  It is essential that, on an application under s 14, all persons who would be disadvantaged by the making of the order should be given an opportunity to be heard.  That category of persons will include all those who would benefit under any previous valid will.

[3]      In this case, the document sought to be declared valid is as unsigned draft will prepared in accordance with instructions given in April 2011.  The deceased had made a prior will on 23 December 2010.  That means that the persons who will be

affected will be those who would benefit under the will dated 23 December 2010,

RE FRASER (DECEASED) HC NAP CIV-2011-441-700 20 December 2011

and will or may receive a lesser benefit under the document sought to be declared valid.   The differences between the document prepared in accordance with instructions given in April 2011 and the previous will dated 23 December 2010 are summarised in the affidavit of Mr D H McDonald, the solicitor involved.   The persons  adversely  affected  are  a  grandson,  whose  legacy was  affected,  and  the deceased’s two sons, for whom there are some differences in the dispositions from those in the earlier will, and who were appointed executors under the earlier will, but not in the later document.   The consent of all of those persons is available. Unnecessary expense and delay would be involved if an on notice application were required in those circumstances.  I am satisfied that the interests of justice require the application to be determined without serving notice of it.

[4]      I turn now to the substantive application.   Mr McDonald’s evidence is that the  deceased  lived  in  Otane,  about  40 minutes  drive  from  Hastings  where Mr McDonald has his office.   Mr McDonald had acted for him for approximately

25 years  and  came  to  know  him  well  during  that  time.    The  deceased  would sometimes  call  on  Mr McDonald  when  he  was  in  Hastings,  often  without  an appointment.    He visited  Mr McDonald  in  that  way on  27 April 2011  and  gave instructions   for   a   new   will,   which   was   to   replace   his   earlier   will   dated

23 December 2010.     Mr McDonald  took  handwritten  instructions  and  told  the deceased he would draft a suitable will which would be ready in the next few days for him to come back and sign it whenever it suited him.  He duly prepared a will and kept it on the file ready for the deceased’s next visit.

[5]      The deceased did not come back to sign the new will.  Mr McDonald did not find it unusual that he did not act upon it immediately and assumed he would come back to sign it when he got around to it.   The deceased  had however become seriously ill and died on 1 September 2011 without signing the new will.

[6]      There have been a number of cases where this Court has declared valid unsigned draft wills.  I have referred to a number of those decisions in Re Murray.[1]   I do not propose to repeat that here.  I am satisfied, on the basis of Mr McDonald’s

[1] Re Murray (Deceased) HC Masterton CIV-2011-435-178, 20 December 2011 at [6], [10]-[13].

evidence, that the document does represent the deceased’s testamentary intentions at

the time he gave instructions to Mr McDonald.  The document is in accordance with the handwritten instructions recorded by Mr McDonald.   I am satisfied that the failure to sign the will arose because although the deceased intended to sign his will he did not get around to it before his death, or before he was prevented by ill health from doing so.

[7]      In Re Gladwin v Public Trust,[2] Woolford J upheld a will in somewhat similar circumstances, although in that case the application was opposed.   In doing so, Woolford J referred to an earlier judgment of mine in Re Estate of Hickford,[3] where I had referred to three broad possibilities as to why no appointment to sign a will had been made by the deceased. These were:

[2] Re Gladwin v Public Trust [2011] 3 NZLR 566 (HC).

[3] Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009 at [9].

(a)       That he had changed his mind about making a will;

(b)      That he overlooked or forgot about signing the will;  or

(c)       That he did not think that he needed to do anything further.

[8]      In  stating  those  possibilities,  I  did  not  make  it  sufficiently  clear  that  I intended to confine my remarks to the circumstances of that case, I did not intend to suggest that those would be the only possibilities which might arise in any case.  As Woolford J, in my view correctly, recognised, there are other possibilities.  Each case must be considered on its own facts.

[9]      I am satisfied that the document prepared in accordance with the deceased’s instructions given on 27 April 2011 expressed the deceased’s testamentary intentions at the time it was drafted.  I am satisfied that the lack of signature is not evidence of a change of mind on the part of the deceased. Accordingly, I am satisfied that, at the date of his death, the document expressed the deceased’s intentions.

[10]     There will be an order declaring the draft will, attached to the affidavit of

Mr McDonald sworn on 17 October 2011 as exhibit A, valid as a will pursuant to s 14 of the Wills Act 2007.

[11]     The application for probate should now be considered by the Registrar.

Solicitors:           McDonald Brummer, solicitors, Hastings

“A D MacKenzie J”