Hurry
[2023] NZHC 2892
•16 October 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-500
[2023] NZHC 2892
UNDER the Wills Act 2007 IN THE MATTER
for an order validating the Will of the late ANN ELEANOR HURRY
BETWEEN
MARY ANN JACOBS
Applicant
Hearing: On the papers Appearances:
S R Patient and A J Summerlee for Applicant
Judgment:
16 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 16 October 2023 at 3.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
RE HURRY [2023] NZHC 2892 [16 October 2023]
[1] This is an originating application seeking a declaration that a document made by Ann Eleanor Hurry dated 11 October 2022 is a valid will.
[2] Ms Hurry, the mother of the applicant, Mary Ann Jacobs, passed away on 26 November 2022. At the time of her death, Ms Hurry was divorced. Ms Jacobs is Ms Hurry’s only child. Ms Jacobs gives affidavit evidence that she understands her mother wrote the document in her home soon after she was diagnosed with small cell lung cancer in September 2022. In October 2022, Ms Jacobs’ mother informed her of the document’s existence shortly before her death. She had also told Ms Jacobs several times over the years that Ms Jacobs was to be the sole beneficiary of her estate as Ms Jacobs was her only child. Ms Jacobs recognises the handwriting in the document to be her mother’s handwriting.
[3] Ms Hurry died in the state of Idaho in the United States of America. However, she retained $71,965 in a New Zealand bank account which Ms Jacobs says comprised her late mother’s New Zealand estate. She now seeks to have an order declaring the 11 October 2022 document to be her late mother’s valid will to facilitate in the administration of the estate.
[4] The document itself is a simple document. A copy of it is attached as document "MAJ-05" to Ms Jacobs’ affidavit. It states as follows:
Last will
I Ann Hurry Leave everything I own to my daughter Mary Ann Jacobs [Signature of Ms Hurry]
[5] As is evident, it is titled “last will”. It is dated and is handwritten and signed by the deceased. It is clear as to her testamentary intentions. However, it does not comply with s 11 of the Wills Act 2007 because it has not been witnessed by two other people.
[6] Section 14 of the Wills Act provides the High Court may make an order declaring a document as a valid will if it is satisfied the document expresses the deceased person’s testamentary intentions.
[7]The section applies to a document that:
(a)appears to be a will;
(b)does not comply with s 11; and
(c)came into existence in or out of New Zealand.
[8] As already noted, the document does not comply with s 11 as it has not been witnessed in accordance with that section’s requirements. However, it clearly appears to be a will and, on the basis of Ms Jacobs’ affidavit, I am satisfied the document expresses Ms Hurry’s testamentary intentions.
[9] As Ms Patient points out in her submissions, documents with witnessing deficiencies have often been validated by the High Court, particularly where there is little dispute regarding who is to benefit from the estate. In Re Estate of Torkington, a document that did not comply with the provisions of s 11 of the Wills Act, was declared a valid will because “[t]he deceased’s four children are either the applicants for the orders sought, or have consented to the orders sought”.1 It was held “the will does not affect the rights of anyone who might be entitled to benefit from the estate if probate of the will was not granted”.2
[10] In this case, the will benefits the only person whom it would be expected to benefit, being the deceased’s only child, and it is clear in its intention to benefit her.
[11] Accordingly, I grant the application to validate the document made by Ann Eleanor Hurry, dated 11 October 2022, as her valid will.
Solicitors:
ParryField Lawyers, Christchurch
1 Re Estate of Torkington [2016] NZHC 1902 at [3].
2 At [7].
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