IN THE MATTERof the Estate of JOHN OLIVER LLOYD of Taupiri (Deceased)IN THE MATTERof the application by STEPHEN JOSEPH MILLS and CAITLIN JOAN MILLS

[2023] NZHC 2514

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-0003

[2023] NZHC 2514

UNDER	the Wills Act 2007 and the Administration Act 1969
IN THE MATTER	of the Estate of JOHN OLIVER LLOYD of Taupiri (Deceased)
IN THE MATTER	of the application by STEPHEN JOSEPH MILLS and CAITLIN JOAN MILLS

Hearing:	On the papers
Counsel:	V A Whitfield for Applicants J Naidoo for Respondent
Judgment:	7 September 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 7 September 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Gallie Miles, Te Awamutu

Norris Ward McKinnon, Hamilton

Counsel:            V A Whitfield, Cambridge

RE ESTATE JOHN LLOYD OLIVER [2023] NZHC 2514 [7 September 2023]

Introduction

[1]                 This judgment determines an application by the applicants, Mr and Mrs Mills, to validate a document as a will pursuant to s 14 of the Wills Act 2007 (“Act”).

[2]                 Although opposed in the first instance, on the morning the application was to be heard I received a joint memorandum of counsel dated 6 June 2023. In this, counsel advised that the applicant and the interested parties sought several orders by consent, including one granting the application to validate.

[3]                 The interested parties are Mr Christian Lloyd and Mr James O’Rani. They are the stepchildren of the deceased, John Oliver Lloyd, and were directed to be served on behalf of their children for reasons apparent below.

[4]                 The document sought to be validated as a will is a note dated 1 May 2021 written by Mr Lloyd shortly before he died (“note”).

[5]                 For reasons set out below, I am satisfied that I should make an order declaring the note valid as Mr Lloyd’s will.

Background

[6]                 Mr Lloyd died at home on 1 May 2021. On 16 January 2023, Mr B J Hesketh, a coroner, determined that Mr Lloyd had died in circumstances amounting to suicide.

[7]                 Subject to validation of the note, Mr Lloyd had executed his most recent will on 15 March 2019. This will was prepared by a local (Hamilton) firm of solicitors and executed and witnessed in the manner required for a valid will. By this will, Mr Lloyd appointed Mr Mills as executor and trustee of his estate and required that the estate be divided equally between Mr Lloyd’s five step grandchildren, being the children of Mr Christian Lloyd and Mr O’Rani.

[8]                 The police retrieved the note in their search of Mr Lloyd’s house as part of their investigation into the circumstances of his death. The note is dated “1st May 6 pm”

and the evidence is that it was located on top of Mr Lloyd’s bed, sitting on top of the Waikato Times newspaper that Mr Lloyd had delivered daily.

[9]The note is as follows:

1st May 6pm

Caity:- no funeral, Cremation by the Base, sprinkle ashes from Gate to River. Get the will out of the cabinet

Xtian’s 3 Boys in Australia get $50,000 each NZ Dollars James in States 2 twins each get $50,000 NZ Dollars. No body gets any thing else. Go with Stephen to the solicitor sort every thing out you guys are going to be doing all right with what is going to be left

Look through every room & the Garage Good Luck

Everyone!! xxx

[10]“Caity” is Mrs Mills, “Xtian” is Mr Christian Lloyd and “James” is Mr O’Rani.

Validation

[11]Section 14 of the 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—

(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.

[12]The requirements of s 14(1) are met.

[13]             As to s 14(1)(a), the note appears to be a will as defined in s 8(1) of the Act, which itself provides:

8        Meaning of will

(1)Will means a document that—

(a)is made by a natural person; and

(b)does any or all of the following:

(i)disposes of property to which the person is entitled when he or she dies; or

(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or

(iii)appoints a testamentary guardian.

[14]             The note, plainly made by a “natural” person, disposes of property to which Mr Lloyd was entitled on death. As to s 14(1)(b), the note does not comply with s 11 of the Act. Section 14(1)(c) is also clearly satisfied.

[15]             Section 14(2) permits me to make an order declaring the note valid as a will if satisfied that it expresses Mr Lloyd’s testamentary intentions. That in turn requires that I be satisfied Mr Lloyd had testamentary capacity at the time of his death and that he intended that the note should be given effect as his will.

[16]             I have considered the affidavits filed and their exhibits. Having done so, I am satisfied that Mr Lloyd did have testamentary capacity at the time he wrote the note and that it expresses his final testamentary intentions. There are, however, two matters that I should mention in particular.

[17]             The first is that in the years before his death Mr Lloyd was troubled by a serious head injury that he had sustained in late-2018. This affected Mr Lloyd, and his mood. That said, his solicitors plainly considered him competent to make a will in 2019. In addition, and importantly, the coroner could only determine that Mr Lloyd had

committed suicide if he were satisfied that Mr Lloyd was capable of forming the intention to take his own life and of appreciating the consequences of his actions, both at the time of his death. The coroner was plainly satisfied of these matters, both of which are consistent with testamentary capacity.

[18]             The second point is that Mr Lloyd had a modest quantity of alcohol in his blood at the time of his death. However, this was not at anything close to the level that could be expected to impair his faculties in any way.

[19]             Accordingly, and notwithstanding these two matters, I am satisfied that s 14(2) of the Act is met, and that I may and should declare the note valid as a will.

Result

[20]             Pursuant to s 14 of the Wills Act 2007, I declare the note, which is annexed marked “SM4” to Mr Mills’ affidavit of 30 November 2021, valid as a will.

[21]             As to the other orders or directions sought in the consent memorandum, as requested, I direct that a case management conference should be scheduled for the earliest possible date . However, I decline to give the direction sought in [9.5] of the consent memorandum. This concerns probate, which is governed by particular provisions in the High Court Rules 2016. The parties should follow the appropriate procedures accordingly.

Peters J