Harris

[2022] NZHC 1041

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2022-406-002

[2022] NZHC 1041

UNDER	section 14 of the Wills Act 2007
IN THE MATTER	of an application by KARMEL ASHLEIGH HARRIS for an order that a document be declared a valid Will

On the papers:
Counsel:	J S Marshall for Applicant
Judgment:	13 May 2022

JUDGMENT OF CHURCHMAN J

[1]    By interlocutory application dated 28 February 2022, the applicant applied without notice for directions as to service and for the appointment of a litigation guardian in these proceedings.

[2]    The substantive proceedings involve an application for an order under s 14 of the Wills Act 2007 (the Act) that a document be recognised as a valid Will of the late Ms Leigh Anne Maddison (the Deceased).

[3]By minute of 16 March 2022, Mander J made the following directions:

(a)appointing  Edward  Paul  Watkinson  as  litigation  guardian  for Lucia Milla Algie Watkinson (Lucia) (an infant beneficiary of a prior Will made by the Deceased);

K A HARRIS [2022] NZHC 1041 [13 May 2022]

(b)directing that the application by the applicant be served on Lucia by emailing the documents to Paul Watkinson at the email address identified in his affidavit; and

(c)confirming that the application need not be served on any other person.

[4]    Paul Watkinson swore and affidavit dated 31 January 2022 confirming that he was the father of Lucia and that Lucia was the niece of the Deceased. He confirmed that he consented to be appointed as litigation guardian.

[5]    On 2 February 2022, Raewyn Leslie Richardson swore an affidavit in support of the application to validate the Will. She confirmed that she was a friend of the Deceased. She attached to her Will a screenshot of a text message from the Deceased confirming that she wished to change her Will and leave her share of her house money to the applicant rather than Lucia.

[6]    The applicant also swore an affidavit dated 28 February 2022. Annexed to it was a Will for the Deceased dated 2 March 2018, which, after certain bequests, left the residue of the estate to Lucia.

[7]    On 31 January 2022, a memorandum of consent from Patricia Anne Watkinson, the mother of the Deceased, and a beneficiary under her Will dated 2 March 2018 formally consented to the application by the applicant to declare a handwritten Will dated 16 October 2020 to be the last Will of the Deceased. Also filed was a memorandum of consent dated 4 February 2022 on behalf of Shelley Anne Watkinson, a niece of the Deceased, named as a beneficiary under the document which the applicant seeks to be validated as a Will. She consented to the application proceeding.

[8]    Joanna Beth Watkinson, another niece of the Deceased, named as a beneficiary under the document which the applicant is seeking to be validated as a Will, consented on 18 February 2022 to the application proceeding.

[9]    Also attached as an exhibit to the affidavit of the applicant was a multi-page handwritten document prepared by the Deceased and purporting to be her last Will and

testament. The document does not comply with the witnessing requirement in s 11(4) of the Act because it was not witnessed.

[10]   On 4 April 2022, Mr Marshall, counsel for the applicant, filed a memorandum with the Court confirming that he had spoken to Paul Watkinson after service of the application and supporting documents on him, and that Mr Watkinson told him that he was not going to oppose the application, and that he intended to appear at the call of the matter on 11 April 2022 and acknowledged service.

[11]   Mr Watkinson did not appear when this matter was called before Gwyn J on 11 April 2022. Gwyn J issued a minute. The minute noted that Mr Watkinson had not appeared at the call to acknowledge service and directed that Mr Marshall file an affidavit of service. It recorded that the application would be set down for hearing on the papers and directed that if Mr Watkinson wish to file anything in relation to the application, he should do so by 5pm on Tuesday 26 April 2022.

[12]   26 April 2022 has come and gone and nothing has been filed. Mr Marshall has filed an affidavit of service recording service of the applications and supporting affidavits, as well as the consents, on Mr Watkinson.

[13]   In the absence of any opposition to the application, the matter is now able to be dealt with on the papers as directed by Gwyn J.

Analysis

[14]   I am satisfied from the material set out in the affidavits filed in support of the application that the handwritten document dated 16 October 2021, a copy of which was exhibited to the affidavit of the applicant and marked “KEH-8” should be declared valid as the last Will of the Deceased, Leigh Anne Maddison. The material before the Court satisfies me that this document expresses the testamentary intentions of the Deceased. It only fails to meet the requirements of the Wills Act because of the lack of witnessing.

Outcome

[15]   The handwritten document dated 16 October 2021 exhibited as “KEH-8” to the affidavit of the applicant is declared to be the last Will and testament of the Deceased, Leigh Anne Maddison.

Churchman J

Solicitors:

Gascoigne Wicks, Blenheim for Applicant