In the Estate of Brown HC Auckland CIV 2010-404-6328

[2010] NZHC 1865

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006328

IN THE ESTATE OF WILLIAM ALFRED BROWN

Applicant

Hearing:         13 October 2010

Appearances: Mr D Graham for applicant

Judgment:      13 October 2010 at 2.30 pm

JUDGMENT OF LANG J

[on application for declaration as to validity of Will]

This judgment was delivered by me on 13 October 2010 at 2.30 pm, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

DG Law, Panmure

IN THE ESTATE OF WILLIAM ALFRED BROWN HC AK CIV-2010-404-006328  13 October 2010

[1]      William Alfred Brown died at Auckland on 18 November 2009.  He was 79 years old at the date of his death.

[2]      Mr Brown was survived by his wife, Erina Hazel Rosemary Brown, and the four sons of their marriage, Colin, Jeffrey, Ian and Philip.  They are 45, 42, 40 and

39 years of age respectively.   Mr Brown had no other children at the date of his death.

[3]      Eighteen  years  before his  death,  on  19  September  1991,  Mr  Brown  had executed a formal will leaving all of his estate other than his shares in a company called  Oceanside  Imports  Limited  to  his  wife.    He  bequeathed  his  shares  in Oceanside Imports Limited to his son Jeffrey.

[4]      Subsequently, on 10 August 2008, Mr Brown signed an informal document that purported to be his last will and testament.  Under this document Mr Brown left all his “worldly goods including Ocean Air (NZ) Limited” to his wife.   Later, on

9 November 2009, Mr Brown visited the East Auckland office of the Public Trust. There he provided the Public Trust with formal instructions to prepare a will under which the Public Trust was to be appointed as executor and trustee and his wife was to receive his entire estate.  The Public Trust prepared a draft will, but unfortunately Mr Brown died before he could sign that document.   As a result, his wife now applies for an order under s 14(2) of the Wills Act 2007 (“the Act”) declaring one of these two documents valid as Mr Brown’s last will and testament.

Jurisdiction

[5]      Section 11 of the Act prescribes the requirements of a valid will.  It provides as follows:

11     Requirements for validity of wills

(1)     A will must be in writing.

(2)     A will must be signed and witnessed as described in subsections  (3)

and (4).

(3)     The will-maker must—

(a)     sign the document; or

(b)     acknowledge that a person directed by the will-maker signed the document in the will-maker's presence.

(4)     At least 2 witnesses must—

(a)     be together in the will-maker's presence when the will-maker complies with subsection (3); and

(b)     each state on the document, in the will-maker's presence, that the witness was present when the will-maker complied with subsection (3); and

(c)     each sign the document in the will-maker's presence.

[6]      Neither the document dated 10 August 2008 nor the draft will that the Public Trust prepared meets the requirements of s 11.  The document dated 10 August 2008 does not comply with s 11(4) because it was only witnessed by one person, and that person did not state on the document, in the presence of Mr Brown, that he or she was present when Mr Brown signed the document.  The draft unsigned will does not comply with s 4 because it was not signed by Mr Brown or by two witnesses.

[7]      The fact that the two documents do not comply with the requirements of s 11 does not necessarily mean that they cannot be valid.  Section 14 provides the Court with jurisdiction to declare a will valid notwithstanding the fact that it does not comply with s 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.

[8]      As will be evident from s 14(3), the Court may take into account a variety of factors in considering whether or not to declare a document valid as a will.  These include  the  document  itself,  evidence  as  to  the  signing  and  witnessing  of  the document (if applicable), evidence as to the testamentary intentions of the deceased and evidence of statements made by the deceased person.  It is therefore appropriate to briefly outline the circumstances in which the two documents that are the subject of the present proceeding came to be prepared.

Relevant facts

[9]      The will that Mr Brown signed on 19 September 1991 was drafted by his accountant, Mr Keith Appleton.  After Mr Brown signed that will and it was duly witnessed, Mr Appleton stored the will in his deeds system until Mr Brown passed away.   He says that in recent years he and Mr Brown had discussed on several occasions Mr Brown’s desire to change the will so to bequeath all of his assets to his wife.

[10]     Mr Appleton deposes that Mr Brown was always quite clear that he intended his  wife  to  inherit  all  of his  assets,  with  a  gift  over  to  his  sons  if  she  should predecease him.  Mr Brown wished to change his will because of the fact that, in his will dated 19 September 1991, he had bequeathed his shares in Oceanside Imports Limited (subsequently Ocean Air (NZ) Limited) to his son Jeffrey.   Mr Appleton says that in later years the value of Mr Brown’s interest in this company increased greatly, and he wished his wife to receive the benefit of that investment.

[11]     By August 2008 Mr Brown had become ill and was diagnosed with cancer. At this point he discussed changing his will with Mr Appleton and with his wife.  At that time he also prepared and signed the document dated 10 August 2008.   Mrs Brown says that her husband intended that document to supercede his earlier will, and to be the mechanism by which he bequeathed all of his assets to her.  He was too ill at that stage to go to a lawyer to have a new will prepared, and was about to begin

receiving chemotherapy.   She says that he believed that the document dated 10

August 2008 would be sufficient for his intentions to be carried out.  Neither he nor she had much time to think about his will further over the next few months, because he was undertaking an intensive course of chemotherapy and this took a significant toll upon him physically.

[12]     Mrs Brown deposes that at one stage it appeared that the chemotherapy had nearly got rid of Mr Brown’s cancer.  Last year, however, he began to struggle with his health.  By the end of October 2009 the doctors advised Mr Brown that his heart was not functioning well and that they could not continue to treat his illnesses.  They also told him that he did not have much longer to live. Mr Brown accepted that diagnosis reluctantly, and agreed to receive hospice care at home.  From that point on he received palliative care to help him keep his dignity and preserve his quality of life for as long as possible.

[13]     At this point Mr and Mrs Brown decided that they needed to place their legal affairs in order and to update their wills.  They decided that they would leave all of their assets to each other, with a gift over to their sons in the event that one did not survive the other.  Because they did not have a solicitor, they decided to go to the Public Trust for assistance in drawing up new wills.

[14]     On 9 November 2009 Mr and Mrs Brown went to see Michelle Kit, a Legal Advisor employed by the Public Trust at its East Auckland office.   Mrs Brown waited in the reception area whilst her husband saw Ms Kit and provided her with instructions for his last will and testament.

[15]     Ms Kit deposes that she entered Mr Brown’s instructions directly onto her computer, and he was able to view them as they came up on the screen.  Mr Brown instructed Ms Kit that all of his assets were to pass to his wife subject to her surviving him.  If Mrs Brown predeceased Mr Brown, his assets were to be divided equally between the four sons of their marriage.   Ms Kit deposes that Mr Brown checked and approved the instructions that he was giving her as she entered them on her computer screen.  For that reason she believes that those instructions reflected his

testamentary intentions as at 9 November 2009. She then prepared a formal will reflecting the instructions that Mr Brown had given her.

[16]     Ms Kit made an appointment for Mr Brown to come in and sign the will on

16 November 2009.  On that date, however, she received a telephone call advising that he was unwell and would not be able to attend the appointment.  She was told that Mr Brown intended to reschedule his appointment when he felt better.   She subsequently received advice, however, that Mr Brown had passed away at his home on 18 November 2009.  As at the date of Mr Brown’s death neither Ms Kit nor Mrs Brown had received any indication from Mr Brown that he wished to change the instructions that he had given to Ms Kit on 9 November 2009.

Decision

[17]     The document that Ms Kit prepared is in all respects a conventional will containing all of the terms that one would usually expect to see included in a will. The only reason that it is not valid in terms of s 11 is that it is not signed and witnessed in the prescribed manner.

[18]     Before the Court  will declare an  unsigned  document  to  be valid,  it will normally require cogent evidence that it reflects the testamentary intentions of the deceased: Re Hickford (deceased) HC Napier CIV 13 August 2009 at [11].   This reflects the obvious importance of the declaration that the Court is being asked to make.

[19]     Notwithstanding the fact that Mr Brown never signed the will that Ms Kit prepared, I have no doubt that it reflected his testamentary intentions as at the date of his death.  It reflects the instructions that he gave Ms Kit just one week before his death.  He was able to see those instructions as Ms Kit typed them on her computer. The only reason that Mr Brown did not sign the will and have it witnessed in the prescribed form was that his ill health prevented him from keeping the appointment on 16 November 2009 and thereafter.

[20]     I am therefore satisfied that it is appropriate to make an order under s 14(2) declaring the draft will that Ms Kit prepared to be valid.  I do not consider that it would be appropriate to make such a declaration in relation to the document dated 10

August 2008, because in Mr Brown’s mind that document had been superceded by the document that Ms Kit was preparing in accordance with the instructions to that he had given her on 9 November 2009.

[21]     I record that all of Mr Brown’s sons have taken independent legal advice regarding the present application, and they have all provided their written consent to the order that I propose to make.  That fact assumes importance because Mr Brown’s sons, and Jeffrey in particular, are the only other persons who will be affected by the declaration that the Court is being asked to make.  As a result, it is appropriate in terms of r 7.45 of the High Court Rules for the application to proceed on a without notice basis.

Order

[22]     I make an order under s 14(2) of the Wills Act 2007 declaring the draft will that  Ms  Kit  prepared  on  or  about  9 November  2009  valid  as  the  last  will  and testament of William Alfred Brown.

Lang J