In the Matter of an application by Elizabeth Nelda Weggery And Vivian Dawn Easton for an order that a document be declared a valid will of the deceased Heather Muriel Wright

[2024] NZHC 1042

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-128

[2024] NZHC 1042

UNDER

Section 14 of the Wills Act 2007

AND

IN THE MATTER

of an application by ELIZABETH NELDA WEGGERY AND VIVIAN DAWN

EASTON for an order that a document be declared a valid will of the deceased HEATHER MURIEL WRIGHT

Hearing:	On the papers
Counsel:	D P O’Neill for the Applicants
Judgment:	1 May 2024

JUDGMENT OF McHERRON J

[1]                  This is a without notice application by Elizabeth Weggery and Vivian Easton for an order under s 14 of the Wills Act 2007 (the Act) to declare a will valid. I allow the application, for the following reasons.

Background

[2]                  In December 2021, Heather Wright met with Thomas Montague, her lawyer, to give him instructions to prepare a new will. In his affidavit in support of the present application,  Mr Montague  produced  a  copy  of  a  handwritten  file  note  dated   21 December 2021 in which he recorded Mrs Wright’s instructions for her will.

RE ESTATE OF WRIGHT [2024] NZHC 1042 [1 May 2024]

[3]                  At the same time as Mrs Wright gave Mr Montague her will instructions, she also instructed him to prepare applications for her to be appointed the welfare guardian and property manager for her son, Gregory William Wright, under the Protection of Personal and Property Rights Act 1988 (the PPPR Act).

[4]                  Mr Montague was unable to meet with Mrs Wright to sign her new will before the end of 2021. He intended to contact her immediately after he returned to work in the new year.

[5]                  On his return to work in early  January  2022,  Mr Montague  telephoned  Mrs Wright’s home numerous times, but was unable to make contact with her. He then contacted the applicant Mrs Easton, a close friend of Mrs Wright. Mrs Easton informed Mr Montague that:

(a)Mrs Wright had suffered a stroke over the Christmas break and was in hospital, but was not expected to die imminently;

(b)due to the effects of the stroke, Mrs Wright would not be able to return to live in her home;

(c)Mrs Wright would instead move into a retirement village after her discharge from hospital.

[6]                  Mr Montague visited Mrs Wright again in March 2022. He did not take her draft will with him, because the primary purpose of his visit was to discuss welfare guardian and property manager arrangements for Gregory. However, Mr Montague deposes that he did not consider that Mrs Wright was at risk when he visited her.

[7]                  A few weeks later,  Mrs Easton  contacted  Mr Montague  to  advise  that  Mrs Wright had moved into a retirement village. Mr Montague immediately contacted the retirement village to arrange a time to visit Mrs Wright so she could sign her will. However, his efforts to meet her were again thwarted, this time because of Covid-19 lockdowns.

[8]                  When Mr Montague finally managed to meet with Mrs Wright, on 22 June 2022, he had concerns about her testamentary capacity. These concerns were justified when, on 19 July 2022, Mrs Wright’s doctor advised Mr Montague that, in his opinion, Mrs Wright did not possess sufficient understanding to execute her will.

[9]                  Mr Montague then took steps to arrange for the appointment of Mrs Easton as property manager for Mrs Wright. However, by the time the PPPR Act proceedings were drafted, Mrs Easton advised Mr Montague that Mrs Wright’s health had suddenly deteriorated and she was not expected to live.

[10]Mrs Wright died on 30 October 2022.

[11]              There is a properly executed and attested will of Mrs Wright dated 21 February 2021. However, Mrs Weggery and Mrs Easton, the executors named in the unsigned will drafted by Mr Montague, seek to have the more recent unsigned will validated.

[12]              Mr Montague deposes that when he took Mrs Wright’s instructions for her will in December 2021, she was entirely coherent in everything that she said and that, despite her age, he had no concerns whatsoever about her testamentary capacity.   Mr Montague deposes that Mrs Wright was “firm and clear as to how she wanted her estate to pass”. Given her age, Mr Montague suggested it might be worthwhile asking her doctor to confirm her capacity. However, Mr Montague said that Mrs Wright was “aghast at [his] suggestion and insisted there was nothing wrong with her, and refused. She was very firm in telling [him] what she wanted”.

[13]              The unsigned will Mr Montague drafted simply provides for Mrs Wright’s estate to be divided into two equal shares, with:

(a)one share going to her son Fraser; and

(b)the other share going to her other son Gregory for his lifetime and then to Fraser’s son Nicholas Wright.

[14]              As Mr Montague deposes, the will he drafted is consistent with Mrs Wright’s instructions when he visited her in hospital, as recorded in his file note.

[15]              Accompanying the application for validation of Mrs Wright’s will is a document expressing Fraser Wright’s consent to an order declaring the draft will, a copy of which is annexed to his consent, as a valid will of Mrs Wright. Fraser Wright also confirms that he has obtained independent legal advice in respect of his consent to the validation.

[16]              Mrs Easton has also provided an affidavit supporting the application to declare the document to be a valid will. She is currently the Court appointed welfare guardian and property manager for Gregory.

Assessment

[17]              The document annexed marked “A” to the affidavit of Thomas Montague appears to be a will, but it does not comply with s 11(2) of the Act because it is not signed and witnessed as required by subss (3) and (4).

[18]              Section 14 of the Act provides that the High Court may make an order declaring a document that appears to be a will valid if it is satisfied that the document expresses the deceased person’s testamentary intentions.1 The Court may consider:2

(a)the document;

(b)evidence on the signing and witnessing of the document;

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

[19]Based on the material submitted by the applicants, I am satisfied that:

(a)the present application can proceed without notice; and

1      Wills Act 2007, s 14(2).

2      Section 14(3).

(b)the unsigned unwitnessed will expresses Mrs Wright’s testamentary intentions.

Result

[20]              I declare that the unsigned will, a copy of which is annexed as exhibit “A” to the affidavit of Thomas Montague affirmed on 9 November 2023, is valid.

McHerron J

Solicitors:

Todd Whitehouse, Levin for Applicants