Gyde v New Zealand Guardian Trust Company Limited

[2014] NZHC 1167

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-9963 [2014] NZHC 1167

IN THE MATTER	of section 14 of the Wills Act 2007
AND	of the estate of FRANCIS JAMES GYDE
BETWEEN	THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Plaintiff

Hearing:	26 May 2014
Counsel:	C J Kelly for Plaintiff
Judgment:	26 May 2014

ORAL JUDGMENT OF WILLIAMS J

Facts

[1]      Francis James Gyde died on 25 August 2013.  His wife Mary Muriel Anne Gyde had  predeceased  him  in  May 2013.    Mr  Gyde left  a modest  estate  –  an unencumbered home in Nelson and some cash in the bank.

[2]      He had executed a Will dated 1 August 2008.   It was prepared by William Brett Johnson of the Guardian Trust in Nelson.  It relevantly provided that if his wife predeceased him then, subject to a $5,000 bequest to the National Heart Foundation,

50 per cent of the residue would be provided to his natural daughter, Christine Anne Fletcher with the remaining 50 per cent being split between his stepson John Francis Crossan (as to 40 per cent) with his two stepdaughters, Christine Anne Hillman and Pauline Mary McDonald, receiving 5 per cent each.

[3]      Mr Gyde returned to Mr Johnson at the Guardian Trust on 19 August 2013 and instructed him to draft a new Will.   In his affidavit Mr Johnson deposed the

GYDE v THE NEW ZEALAND GUARDIAN TRUST COMPANY LTD [2014] NZHC 1167 [26 May 2014]

deceased’s  instructions  were  to  maintain  the  bequest  to  the  National  Heart Foundation  and  the  50 per  cent  residue  to  his  natural  daughter,  Christine Anne Fletcher.  But the allocation to his stepchildren was to change.  John Francis Crossan would now receive 30 per cent and Pauline Mary McDonald, 20 per cent.  Christine Anne Hillman was to be removed as a 5 per cent beneficiary.

[4]      According to Mr Johnson the exclusion of Ms Hillman was stated by the deceased to be because she had been out of touch with her mother (Mrs Gyde) for a long period and had not attended her funeral.  The standard Guardian Trust form that Mr Johnson  populated  with  the  deceased’s  instructions  (including  the  foregoing explanation) was counter-signed by the deceased on 19 August.

[5]      Mr  Johnson  deposed  that  the  Will  was  prepared  according  to  those instructions but “it was not ready until 23 August 2013” – Francis James Gyde died two days later on the 25th.  It was never contacted in order to execute the Will, and so the Will was never signed by him.

Application

[6]      There is thus an application for this Court to validate the unexecuted 2013

Will pursuant to s 14 of the Wills Act.

Procedural history

[7]      The procedural history is as follows.

[8]      In December 2013 there was a direction that the application proceed as a Part 18 proceeding under the High Court Rules.   Consents of all family members, except Christine Anne Hillman, were filed with the proceeding.  That is potentially significant as to the consents because Mr Gyde’s stepson, Mr Crossan, had his share reduced as a result of the reorganisation, or would have his share reduced as a result of the reorganisation under the second Will.  He nonetheless consented.  No consent was provided from the National Heart Foundation, and I do not know whether the Foundation  was  notified,  but,  in  my view,  that  was  hardly necessary  since  the Foundation’s bequest remained the same under both documents.

[9]      The Court then directed that Christine Anne Hillman be served with the proceedings and this was duly effected on 23 December 2013 by a process server. Following that, there was a further direction that Mrs Hillman be given notice of today’s fixture – that notice by no later than 12 May –two weeks prior to this fixture. Such notice was sent by ordinary mail by Mr Kelly in a letter dated 24 March 2014 to the address at which Mrs Hillman had been served with the proceedings.  Having received no confirmation of Mrs Hillman’s receipt of the notice, Mr Kelly wrote again  on  14 April  and  a  duly  counter-signed  copy  of  the  original  24  March notification was returned by Mrs Hillman dated 22 April.  She was aware of both the proceedings and the fixture but has taken no steps.  One can infer that this was an active decision on her part.

The law

[10]     I set out in the judgment s 14 of the Wills Act 2007and I need not go into that.

[11]     Section 14 provides as follows:

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]     The threshold requirements in s 14(1) have obviously been clearly met:

(a)       the 2011 document is a Will;

(b)      being unexecuted, it does not comply with s 11; and

(c)       the document was prepared in Nelson.

[13]     There is therefore jurisdiction to validate the 2013 Will if that appropriate.  I can infer further that the Will reflects Mr Gyde’s intentions as at 19 August 2013 both because that fact is faithfully deposed to by Mr Johnson, and because the Guardian Trust instruction form was counter-signed by Mr Gyde himself.  The only issue for me is whether the 2013 Will continued to reflect Mr Gyde’s intentions on

25 August – the day of his death.

[14]     In  a  memorandum  dated  28  November  2013,  Mr  Kelly  very  helpfully traversed a selection of authorities in which this Court has dealt with similar or analogous situations.  The authorities included the Estate of Hickford (deceased)1, Re

Cairns, Gladwin v Public Trust2 and Re Fraser.3

[15]     The cases identify four possible explanations for the failure of a Will maker to sign the draft of his or her Will:

(a)       a change of mind;

(b)      overlooking or forgetting about the need to sign the Will;

(c)       mistakenly believing that nothing more needed to be done; or

(d)      maintaining an intention to sign the Will but never getting round to it. [16]    It is obvious in this case that the 23 August document continued to reflect

Mr Gyde’s testamentary intentions and there simply was not time for him to sign the

Will before he died on the 25th.  That intention is clear as at 19 August and there is no evidence to suggest that this intention changed within the following seven days.

1      Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.

2      Re Cairns, Gladwin v Public Trust HC Auckland CIV-2010-404-001666, 9 August 2011.

3      Re Fraser HC Napier CIV-2011-441-700, 20 December 2011.

[17]     I  am  satisfied  therefore  that  an  order  under  s 14  of  the Wills Act  2007 validating the unsigned Will prepared by Mr Johnson of the Guardian Trust can be made. And I declare this to be the valid last Will of Francis James Gyde.

[18]     The cost of this application may be met from the estate.

Williams J