Gribben
[2018] NZHC 1109
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002435
[2018] NZHC 1109
IN THE MATTER of the estate of MAVIS HENRIETTA IDA ADAMS MARY CHRISTINA MARGARET GRIBBEN
Applicant
Hearing: (On the papers) Counsel:
David Clark for the Applicant
Judgment:
18 May 2018
JUDGMENT OF MOORE J
This judgment was delivered by me on 18 May 2018 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
RE: GRIBBEN [2018] NZHC 1109 [18 May 2018]
[1] The applicant, Mary Gribben, seeks the validation of a document said to be a will executed by her twin sister, Mavis Adams, and dated 1 June 2017.
[2] The document purports to be the last will and testament of Mrs Adams. It leaves all Mrs Adams’ personal items, including jewellery and clothing, to Mary Gribben and the rest of her estate, in its entirety, to her great nephew, Shanne Gribben, who she described as having been “like a son to me all of his life”. Mrs Adams’ investment account at the ASB is not to be accessed by Shanne until he reached the age of 25.
[3] The provenance of the document is described by Violet Gerwitz in an affidavit she swore on 6 October 2017. Ms Gerwitz deposes that she is the first cousin of the deceased. She and Mrs Adams enjoyed a long and close relationship. She described how on 1 June 2017 she visited Mrs Adams at a respite care facility with Mary Gribben.
[4] As at 1 June 2017 Mrs Adams’ husband was dying. He had developed pneumonia and was on life support at Middlemore’s intensive care unit.
[5] When Ms Gerwitz visited her cousin on 1 June 2017, Mrs Adams said she wished to make a new will to leave her entire estate to her great nephew, Shanne Gribben, with the exception of jewellery and other personal and household items which were to be left for her twin sister. Ms Gerwitz deposes that Mrs Adams was of sound mind, clearly understood that she had an old, existing will in favour of her nephews, but wished to make a new will in favour of her great nephew.
[6] At Mrs Adams’ request, and in the presence of Mrs Adams’ twin sister and her younger sister, Glenys, Ms Gerwitz recorded her wishes in handwriting. Ms Gerwitz wrote down Mrs Adams’ wishes as she dictated them. They were recorded on a piece of paper. Ms Gerwitz deposes she was particularly careful in recording Mrs Adams’ wishes recognising the importance and implications of such a document. Twice she read the document back and twice the deceased confirmed her approval with its contents. The others in the room at the time have deposed to the same effect.
[7] After the handwritten document was completed Mrs Adams asked her daughter to type the document. Once typed, Ms Gerwitz returned to the respite unit later that evening and Mrs Adams signed it in the presence of both her sisters. However, they did not sign the document as witnesses. The following day, at Mrs Adams’ request and in her presence, Mary Gribben contacted Mr Cann, Mrs Adams’ solicitor. They explained the situation to him and asked him to prepare a will for Mrs Adams on the same terms as those included in the document. She also asked him to prepare a will for Mr Adams and powers of attorney for both Mr and Mrs Adams. Mr Cann said that he would prepare the documents immediately and would travel to both hospitals the following day to arrange for them to be executed by Mr and Mrs Adams. That was on Friday 2 June 2017.
[8] By Saturday, 3 June 2017, neither Mr nor Mrs Adams was well enough to sign a will. In fact, Mr Adams’ condition deteriorated. He died on Monday, 5 June 2017 followed by Mrs Adams the following day.
[9] The reasons for Mrs Adams favouring her great nephew and revoking her earlier will are set out in the affidavits filed in support of the application. Mrs Adams’ previous will was executed on 24 June 1983 in terms identical to those of Mr Adams. They did not have children of their own but took an interest in Mary Gribben’s two sons, Warren and Brett who were then aged 13 and 15 years respectively. After Warren grew up he left home and moved to Australia where he got married and had a family of his own. He made his life away from New Zealand and from Mr and Mrs Adams, with whom he had only very occasional contact. Brett remained in Auckland. He and his long-term partner have three children. He maintained a level of contact with Mr and Mrs Adams, estimated to be, on average, about once a month.
[10] Shanne Gribben was born on 3 October 1999. He developed a very close relationship with Mr and Mrs Adams. It began when he was a baby. He spent most of his holidays with them. They maintained a close interest in his development and supported him throughout his school education.
[11] Shanne Gribben helped Mr and Mrs Adams around their home, renovating and undertaking small building projects. Among other things, Shanne helped Mr Adams develop a loft area and together they built a sophisticated train set.
[12] When Mrs Adams was first admitted to hospital with heart failure, Shanne Gribben assumed responsibility for both of them. He ensured that Mr Adams was eating properly and taking his medication. He helped Mrs Adams with her ablutions and maintained a very close watch on them both, including taking them to hospital and attending to each right up until the moment of their deaths.
[13] The evidence is that Mr and Mrs Adams always maintained that Shanne Gribben was the child they never had, and it was well known that they wished to leave everything to him in gratitude for the joy he had brought to their lives.
Service
[14] Following the filing of this application the Court made orders directing service of the application on Warren and Brett Gribben. Service has now been effected. No notices of opposition have been filed.
[15] For these reasons I am satisfied no useful purpose would be served in having this matter set down for a formal hearing.
Principles
[16] Section 14 of the Wills Act 2007 (“the Act”) applies because the 2017 unsigned will plainly purports to be a will, but in a number of material aspects does not comply with the formalities required by s 11.
[17] Section 14 permits this Court to make an order declaring a document to be a valid will if it is satisfied the document expresses the testamentary intentions of the deceased. In deciding whether to make such an order, the Court may consider the wording of the document, evidence as to the manner in which the document was signed
and witnessed, evidence as to the testamentary intentions of the deceased and evidence of any statements the deceased may have made relevant to the issue.1
[18]MacKenzie J commented on the utility of s 14:2
“The power to validate a will given by s 14 of the Wills Act 2007 has been a most valuable and beneficial addition to the powers of the Court to ensure that the clearly expressed testamentary intentions of a deceased person are not frustrated by deficiencies in the formal requirements for execution.”
[19] The primary enquiry under s 14 is whether the document in question expresses the testamentary intentions of the deceased.
Decision
[20] I am satisfied that the document, although not witnessed in accordance with the requirements of the Act3 is, all in material respects, a will. Certainly, it was intended to be Mrs Adams’ last will.
[21] I am satisfied that it reflects Mrs Adams’ testamentary intentions for the following reasons:
(a)the document appears to be a will;
(b)it expresses itself in terms consistent with a testamentary declaration;
(c)it is signed and dated by Mrs Adams;
(d)it is deficient and non-compliant with s 11(4) only because it has not been signed by two witnesses, although more than two witnesses were present when Mrs Adams signed it;
(e)Mrs Adams was of sound mind, according to the evidence of all present;
1 Wills Act 2007, s 14(3).
2 Re Estate of Beaumont [2013] NZHC 2719 at [10].
3 Namely Wills Act 2007, s 11(2)-(4).
(f)at the time Mrs Adams completed the document she was in the company of several close relatives each of whom has deposed to the correctness of the account given by Mary Gribben;
(g)Mr Cann prepared a copy of the new will for Mrs Adams consistent with the instructions, but when he attended Mrs Adams she was unconscious and died shortly afterwards;
(h)the explanation for favouring Shanne Gribben over the beneficiaries under Mrs Adams’ 1983 will is entirely explicable and consistent with the testamentary intention implicit in the 1 June 2017 document;
(i)significant is the fact that although he was not named as an executor in the 1983 will, Mr Cann was nominated by Mrs Adams as her executor together with her twin sister, Mary Gribben who now seek to be appointed executors; and
(j)there was no material delay between the making of the document and Mrs Adams’ death.
Conclusion
[22] For these reasons I am easily satisfied that the document dated 1 June 2017 should be declared as the last will of Mavis Henrietta Ida Adams and that Mary Christina Margaret Gribben and Roger David Cann should be appointed executors of her estate.
[23] Accordingly, I make orders in terms of [1.1] and [1.2] of the originating application dated 10 October 2017.
Moore J
Solicitors:
Wilson McKay, Auckland
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