Heasley (deceased) - [2017] NZHC 3099

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-996 [2017] NZHC 3099

UNDER section 14 of the Wills Act 2007

IN THE MATTER OF

an application by BARBARA DAWN MATHEODA for an order that a document be declared a valid will of the deceased ALISTAIR GRAHAM HEASLEY

On the papers

Judgment:

13 December 2017

JUDGMENT OF CLARK J

[1] Mrs Heasley (formerly Matheoda) applies under s 14 of the Wills Act 2007 for a document, alleged to express the testamentary intentions of the late Mr Heasley, to be validated as a will. She is named as executor on that document. Mrs Heasley also requests leave for this application to be made without notice.

Background

[2] Mr and Mrs Heasley were married on 3 September 2017. Mr Heasley died on or about 14 September 2017, less than two weeks following their marriage.
Mr Heasley died intestate, his previous will of 18 August 2009 being revoked upon his marriage to Mrs Heasley.

[3] Before his death, Mr Heasley had instructed his solicitor, Mr Soh, to prepare a will for him. Mr Soh drafted a will in accordance with Mr Heasley’s instructions and

Re Heasley (deceased) [2017] NZHC 3099 [13 December 2017]

mailed it to Mr Heasley for signing on 12 September 2017. Mr Heasley’s health deteriorated rapidly. He died before the draft will arrived. This unsigned draft is the document that Mrs Heasley seeks to validate under s 14 of the Wills Act.

[4] The gross value of the estate is estimated to be worth under $300,000.

[5] The persons with a beneficial interest in the estate on intestacy are Mrs Heasley and Mr Heasley’s two adult children, Paul Graham Heasley and Joanna Brown. Both children have signed written (and witnessed) consents to the making of an order validating the unsigned draft as a will.

[6] The draft contains a clerical error, referring to Joanna Brown as Joanne Brown.

[7] Mrs Heasley claims to have made reasonable enquiries, for the purposes of the Status of Children Act 1969, as to the existence of a parent or child of Mr Heasley of whom she is unaware. A search of the Register of Instruments, Declarations and Orders maintained by the Registrar-General pursuant to s 9 of the Status of Children Act returned no results. Nor was the existence of such a claimant revealed in the course of Mrs Heasley’s search of the deceased’s papers.1

Principles relating to validation as a will

[8] 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—

1 Section 5A(2) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 3099
Decision Date: 13 December 2017

CaseChat Overview and Summary

Barbara Dawn Matheoda has applied to the New Zealand High Court under section 14 of the Wills Act 2007 for a declaration that a document is the valid will of Alistair Graham Heasley, who died intestate shortly after marrying Mrs Matheoda. The document in question was an unsigned draft will that Mr Heasley's solicitor had prepared and sent to him for signature, but which he died before signing. Mrs Heasley seeks to have the draft will validated as Mr Heasley's testamentary wishes.

The key legal issues for the Court were whether the draft document expressed Mr Heasley's testamentary intentions, and if so, whether it should be validated as his will under section 14 of the Wills Act. The Court considered various factors in determining whether the draft expressed Mr Heasley's testamentary intentions, including the existence of the draft, prior communications with his solicitor, the specific gifts and instructions in the draft, and the consents of Mr Heasley's children to the validation. The Court found that the draft did appear to express Mr Heasley's testamentary intentions and granted Mrs Heasley's application to have it validated as his will.

The Court also granted leave for Mrs Heasley to make the application without notice, as all affected parties had provided written consents. The Court ordered that the clerical error referring to Mr Heasley's daughter as Joanne Brown instead of Joanna Brown should be corrected. Mrs Heasley was declared the executor of Mr Heasley's estate and the unsigned draft will was validated as his testamentary document.

Orders