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 Status of Children Act 1969 deems the applicant to have made reasonable enquiries for the purpose of s 5A(1) upon the completion, in good faith, of these two steps.

(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.

[9]      The High Court has validated draft wills under s 14 in numerous cases.  Of particular  relevance  to  the  present  application  is  the  following  statement  of

MacKenzie J in Re Estate of Campbell:2

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.   The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

[10]     The High Court also has jurisdiction under s 31 of the Wills Act to make an order correcting a clerical error.

Discussion and conclusions

[11]     The document Mrs Heasley seeks to have validated clearly appears to be a will. It was drafted as such.  It does not comply with s 11 of the Wills Act because it is unsigned.   It came into existence in New Zealand.   Section 14 of the Wills Act therefore applies.

[12]     In all the circumstances, I accept the document expresses the testamentary intentions of Mr Heasley.  In arriving at this conclusion, I have taken into account the following:

(a)      The  existence  of  the  draft  will  demonstrates  a  preference  by

Mr Heasley not to die intestate.  That would be the consequence if the

2      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

document  is  not  validated,  given  the  revocation  of  Mr Heasley’s previous will by marriage.

(b)      Mr Soh’s letter attaching the draft will refers to Mr Heasley’s email on

8 September 2017 and a telephone conversation on 12 September 2017. His  letter  records  also  that  an  amendment  was  made  to  refer  to Mrs Heasley as Mr Heasley’s wife.  Mr Soh then said:

We  trust  that  the  will  is  now  in  accordance  with  your instructions.

The rest of the letter contains instructions as to how to sign the will including details about the witnessing requirements.   This letter strongly  suggests  the  will  was  in  final  draft  form  requiring  only

Mr Heasley’s signature. On the basis of the prior communications and subsequent amendment I may safely assume the document accurately reflects Mr Heasley’s testamentary intentions.   I do not consider the clerical error should detract from this reasonable assumption.

(c)      The document itself includes numerous specific gifts and instructions, which show Mr Heasley had given much thought to the disposition of his estate.3   Certainly the document is more detailed than, his previous will of 2009 which was only one page in length.   For instance, the document gives directions on the nature of funeral Mr Heasley desired, including that there be no casket and no religious ceremony.

(d)The document also repeats the instruction made in the 2009 will to cremate  Mr  Heasley’s  body. This  continuity  provides  a  degree  of reassurance that the document expresses Mr Heasley’s testamentary intentions.

(e)      Further, in respect of some gifts the document states that Mr Heasley had already given possession of the gift to the intended recipient.  The

3      Re Rejouis (deceased) [2010] 3 NZLR 422 (HC) where the document itself provided evidence of careful consideration regarding distribution of the estate by the deceased.

possession of those gifts by the intended beneficiary corroborates the document’s expression of Mr Heasley’s testamentary intention.

(f)      More generally, the circumstances in which the document was created provide   reassurance   that   the   document   expresses   Mr Heasley’s testamentary intentions. Mr Heasley appears to have been ill during the time  he  instructed  his  solicitor,  as  Mrs Heasley  remarked  that  his “health  deteriorated  rapidly”.    It  would  be  reasonable  to  assume

Mr Heasley had his testamentary intentions in front of his mind at the time.

(g)It is also relevant that the document came into existence very recently, so there is no question of it being out-dated.

(h)Finally, the fact Mr Heasley’s two adult children have provided written consents to the validation is relevant.4   Although the interests of the presumptive beneficiaries under intestacy are not relevant, their consent remains useful in ruling out potential undue influence by Mrs Heasley, or anyone else, or any suggestion Mr Heasley did not intend to sign the draft because he had changed his mind.

[13]     Given all affected parties have provided written consents, I also consider that

Mrs Heasley should be granted leave to make this application without notice.5

[14]     Finally, I consider the clerical error in the spelling of Joanna Brown’s name should be corrected under s 31 of the Wills Act.

Result

[15]     The following orders are made:

(a)       Leave is granted to make this application without notice;

4      Re Cornelius (deceased) [2012] NZHC 563 where all three children provided written consents when the deceased was otherwise intestate.

5      High Court Rules 2016, r 7.25.

(b)The document at Exhibit B to the affidavit of Barbara Dawn Heasley affirmed on  27  November 2017  is  declared  to  be a valid  will  of

Mr Heasley; and

(c)       References  to  Joanne  Brown  in  that  document  are  corrected  to

Joanna Brown.

Karen Clark J

Solicitors:

Shanahans Law Limited, New Lynn, Auckland for Applicant