Greathead (deceased)

[2014] NZHC 3068

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2014-406-000032 [2014] NZHC 3068

IN THE MATTER OF

AND

IN THE MATTER OF

the Wills Act 2007

the estate of ASTON WYATT GREATHEAD, Deceased

AND

DENNISE KAY CHIRNSIDE Plaintiff

Hearing:	On the papers
Counsel:	G Kelly for plaintiff
Judgment:	3 December 2014

JUDGMENT OF CLIFFORD J

[1]      This is an on notice application made pursuant to s 14 of the Wills Act 2007 to declare a will prepared for the late Mr Greathead three years before his death to be a valid will, notwithstanding the fact that the will was not signed by Mr Greathead.

[2]      Mr Greathead died on 18 July 2012.

[3]      In 2009 Mr Greathead and Mrs Greathead instructed Audrey Isobel Seaton, a solicitor in Nelson, to prepare draft wills.

[4]      After meeting Mr Greathead on 29 July, Ms Seaton prepared the draft will and sent it to Mr Greathead on 28 July 2009.   In circumstances to which I return,

Mr Greathead never in fact signed that will.

Re Greathead (deceased) [2014] NZHC 3068 [3 December 2014]

[5]      Sometime  between  November  2009  and  his  death  on  18  July  2012, Mr Greathead lost mental capacity.

[6]      In 2012 Mrs Chirnside applied for appointment as Mr Greathead's property manager under the Protection of Personal and Property Rights Act 1988 (the PPPR Act).  At that time, Mrs Chirnside and her solicitor believed that the draft will had been signed.   They had been told that by both Mr Greathead and Mrs Greathead. That was not the case.  Ms Seaton deposes that she advised them that the draft will had  not  been  signed  and,  as  a  result,  the  papers  prepared  in  support  of Mrs Chirnside’s  appointment  as  Mr Greathead’s  property  manager  included  an application to the Court for Mrs Chirnside to have power to sign the draft will on Mr Greathead’s behalf pursuant to s 55 of the PPPR Act.

[7]      Accordingly,  when  Mrs Chirnside was  appointed Mr Greathead’s  property manager, all involved understood she had the authority to sign the draft will on Mr Greathead’s behalf, which she did.

[8]      It was subsequently discovered that no order under s 55 had been made.  The circumstances of that matter are referred to in an oral judgment of Judge Grace in the Family Court at Blenheim.1    Suffice it to say, the Judge records that he had overlooked making the s 55 order, but that he had intended at the time to do so. Judge Grace also expressed his view that the terms of the will were appropriate given the circumstances as they existed between Mrs Greathead and her daughters.

[9]      As matters stand, therefore, the draft will is not signed or witnessed and therefore does not comply with s 11 of the Wills Act.   The will that Mrs Chirnside signed, thinking she was Mr Greathead’s manager with appropriate powers, has not been signed by Mr Greathead and therefore also does not comply with s 11 of the Wills Act.

[10]     Against that background, Mrs Chirnside applies under s 14 of the Wills Act for either of the draft or the signed wills to be declared valid on the basis that they both express Mr Greathead’s testamentary intentions.

[11]     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.

(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]     As MacKenzie J observed in Re Campbell (deceased), a decision of some importance in this area as it was delivered following full argument:2

[4]       Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills.  Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode  of  expression  did  not  comply  with  the  formalities  that  the  law required.  Section 14 has been very beneficial in avoiding that outcome.  Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[13]     Against that background I consider Mrs Chirnside’s application.

[14]     The first issue is whether it is appropriate that I am considering this matter on the papers, and without any separate submissions on behalf of Mrs Greathead. These proceedings were commenced by way of a without notice interlocutory application for orders as to conduct, service and representation.   Associate Judge Matthews subsequently made orders that proceedings be commenced by way of statement of claim, that service on the deceased’s other two daughters, Susanne Jean Leslie and Wendy Wilks Smith be dispensed with as they had consented to the proceedings, and that the application be served on Mrs Greathead.  There is an affidavit of service of

Mrs Greathead on the file.   Mrs Greathead was served on Friday 3 October 2014. Mrs Greathead has taken no step in these proceedings.

[15]     On  that  basis,  and  given  the  terms  of  the  will,  I am  satisfied  that  it  is appropriate  for  me  to  consider  this  matter  on  the  papers  without  hearing  from Mrs Greathead.

[16]     In terms of s 14(1) of the Wills Act I must be satisfied that the document in respect of which this application was made appears to be a will, does not comply with s 11 (it is not signed), came into existence in New Zealand and that it expresses Mr Greathead’s testamentary intentions.

[17]     The first three of those four elements are clearly satisfied here, and require no further comment from me.

[18]     Affidavit   evidence   as   to   the   draft   will   expressing   Mr Greathead’s testamentary intentions have been provided by Ms Seaton, the solicitor who prepared the will for Mr Greathead, and the applicant in these proceedings, Mrs Chirnside.

[19]     Ms   Seaton   deposed   that   in   2009   she   acted   for   Mr Greathead   and Mrs Greathead  to  prepare  new  wills.     She  discussed  with  them,  and  with Mrs Chirnside who was present at the meeting, the possibility of life interest wills and they both agreed that that would suit them.  Ms Seaton prepared two such wills, and sent them to Mr and Mrs Greathead on 29 July 2009, asking that they attend at her offices to sign those wills.  In fact, they did not.

[20]     In October 2009 Mr and Mrs Greathead sold their then home at 55 Murphy’s Road, Blenheim and purchased a new property at 13 Page Street, Blenheim.   Their wills had by then not been signed.   Ms Seaton asked why that was the case, and deposes that Mrs Greathead advised she did not wish to sign the will just yet, and wanted to put it off for the time being.  In contrast, Mr Greathead was happy with his draft will, but agreed to wait until Mrs Greathead signed hers before signing his.

[21]     Ms   Seaton   confirms   she   firmly   believes   the   draft   will   expresses Mr Greathead’s testamentary intentions and that the only reason he failed to sign the draft will was that he lost mental capacity after it was prepared.   Ms Seaton also deposes that, when the proceedings were afoot to appoint Mrs Chirnside her father’s manager, Mrs Greathead was of the view that she should be appointed manager and that  it  should  be  her  (Mrs  Greathead)  who  would  sign  the  draft  will  on Mr Greathead’s behalf.

[22]     In her affidavit Mrs Chirnside confirms Ms Seaton’s narrative of events, her belief that the draft will represents her father’s testamentary intentions and that her mother, who was the dominating partner in her parents’ relationship, was the reason her father’s will had not been signed even though she had often told her that it had been.

[23]     Mrs  Chirnside  also  affirms  that  she  believes  her  father’s  testamentary intentions did not change from those recorded in the draft will prior to his loss of mental capacity.

[24]     In these circumstances, and on the basis of that evidence, I am satisfied that the draft will does express Mr Greathead’s testamentary intentions.  I also accept that after that draft will was prepared he intended to sign it and only did not do so because of the circumstances referred to in the affidavits, including finally his loss of mental capacity.

[25]     For these reasons, I make an order that the draft will is a valid will of

Mr Greathead.

“Clifford J”

Solicitors:

Greg Kelly Law Ltd, Wellington for plaintiff.