Jackson

[2024] NZHC 297

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-12

[2024] NZHC 297

IN THE MATTER OF

Section 14 of the Wills Act 2007 and Section 5 of the Administration Act 1969

IN THE ESTATE OF

JUDITH MAGDALEN JACKSON

BETWEEN

RAYMOND SCOTT JACKSON and KIMBERLY MARY JACKSON

Applicant

Hearing:	On the papers
Judgment:	23 February 2024

JUDGMENT OF HARLAND J

[1]                 This judgment determines an originating application without notice for an order declaring a document to be a valid Will and granting letters of administration with Will annexed to the applicants. I grant the orders sought for the reasons outlined below.

Background

[2]                 The applicants are the children of the late Judith Magdalen Jackson. Ms Jackson died in Christchurch on 13 September 2022.

[3]                 Ms Jackson was previously married to the applicants’ father, Conrad Jackson. They separated on 1 June 1996 and recorded their separation and their matrimonial property in an agreement dated 6 May 1998. An order was made dissolving the marriage on 5 January 1999.

RE: JACKSON [2024] NZHC 297 [23 February 2024]

[4]                 After Ms Jackson died, the applicants found a document in her filing cabinet dated 2 September 2017 purporting to be a Will. The Will has not been executed in the manner prescribed in s 11(4) of the Wills Act 2007 (Act) because it has not been formally executed or signed by two witnesses.

[5]                 The document does however express testamentary intentions which are effectively that her estate should be divided between her two children, the applicants, with seven specific bequests to certain individuals including the applicant Kimberly Jackson’s three children. The remaining applicant, Raymond Jackson, does not have children.

The application

[6]                 The application filed was supported by affidavits from both applicants, annexing various relevant documents and a memorandum of counsel.

[7]There are two aspects to the application:

(a)        the applicants seek an order declaring the document dated 2 September 2017 to be a valid Will; and

(b)       should this order be made, the applicants seek a grant of letters of administration with Will annexed, pursuant to s 5 of the Administration Act 1969. This application is sought because the Will document does not name an executor.

[8]                 It is submitted that there is no need for service on any parties in relation to the application or for the Court to require the consent of any affected parties.

[9]                 The applicant, Raymond Jackson, deposed that he has made reasonable enquiries for the purposes of the Status of Children Act 1969 as to the existence of a parent or child of his mother, in addition to those already known to him, who could potentially claim an interest in the estate by reason of that Act and other enactments governing the distribution of intestate estates. Mr Jackson’s enquiries did not discover any such parent or child and he annexed to his affidavit a certificate from the Office

of the Registrar-General confirming the absence of a record of any such parent or child.

[10]              Mr Jackson deposes that both his late mother’s parents (both Canadian) are deceased and her other living siblings reside in Canada.

[11]              The affidavits depose that no one other than the applicants is adversely affected under the Will document, there is no previously executed Will and the default position under s 77 of the Administration Act is that the applicants would be the beneficiaries of the entirety of the estate. In this sense, counsel submitted, and I agree, that the only practical consequence to other parties of declaring the Will document to be a valid Will is to recognise the bequests which would not otherwise be made to those parties. Kimberly Jackson outlined the bequests, which I agree are minor, as follows:

(a)        $2,000 to Susan Williams, a close family friend who had lived with us when Susan was a teenager and continued a lifelong friendship with mum;

(b)       $1,000 to each of Esther and Luka Herber, the children of Susan Williams;

(c)        $1,000 each to my husband’s and my three children, Maya, Oliver and Rose; and

(d)       $2,000 to Daniel Mawson, a close family friend who visited Judith regularly (almost every week).

[12]              Both applicants wish to fulfil their mother’s wishes as she expressed them in the Will document and to honour all intended bequests.

[13]              The affidavits also outline the nature of the estate, which is likely to comprise the value of the late Ms Jackson’s unencumbered home (with a rating valuation of approximately $475,000) and a small amount of cash likely to be under $10,000. It is unlikely that there will be significant debts.

[14]              I am satisfied that it is not necessary for there to be any order for service on any parties, nor for the Court to require the consent of any affected parties. To be

clear, I am satisfied that it is appropriate to proceed to determine the applications on a without notice basis.

[15]              Counsel also noted that, because the application is a hybrid of two applications, the notice of application and supporting affidavits do not comply in all respects with the standard forms for either application. I acknowledge that this may be the case but I am also satisfied that the supporting affidavits have been drafted with the relevant forms in mind and I am satisfied that the key substantive and procedural aspects of each application have been met.

Should an order be made declaring the Will document to be a valid Will?

[16]              Section 14 of the Wills Act empowers the High Court to declare a document that:

(a)        appears to be a Will; and

(b)       does not comply with s 11 of the Act; and

(c)        came into existence in or out of New Zealand;

to be valid if the Court is satisfied that the document expresses the deceased person’s testamentary intentions.

[17]              As the Court held in Re Campbell (deceased), where there is evidence of a deceased’s testamentary intentions, it is preferrable to give effect to those intentions over the disposition of property which would take effect under a previous Will or intestacy.1

[18]In this case, I am satisfied:

(a)        there is a document, as defined by s 6 of the Act, which can be considered by the Court. I accept that both applicants found the document in a filing cabinet on the evening of their late mother’s death, that she had previously discussed her intentions regarding a Will with them both and that the

1      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 716 at [17].

document appears to be a Will, as required under s 14(1) of the Act. It complies with the definition of “Will” under s 8(1) of the Act because it is made by the late Ms Jackson and seeks to dispose of her property upon death;

(b)       the Will document is not valid because it does not comply with s 11 of the Act. It is not signed and witnessed; and

(c)        the Will document came into existence in New Zealand given where it was found.

[19]              Having referred to the three preliminary requirements in s 14(1) and having determined that they are met, I must now consider whether I ought to exercise my discretion to make an order declaring the document valid. I can only do so if I am satisfied the document expresses the late Ms Jackson’s testamentary intentions.2

[20]              The applicants must establish, to the civil standard of proof, that the document records their late mother’s testamentary intentions. I am persuaded that it does. The document is consistent with each applicant’s recall of what their mother told them about her intentions in relation to her property when she died, which included advising them that she had left instructions in a file in the filing cabinet. The Will document was found in the filing cabinet. There is no suggestion that there is any other document purporting to be a Will in existence.

[21]              I also accept counsel for the applicants’ submission that there is no reason the late Ms Jackson would have changed her mind between signing the Will document given the clarity of it in relation to her residuary estate (to be shared between her children equally). This is an entirely orthodox position for a person in her position to take, given she had no spouse or de facto partner.

[22]              I accept the evidence of the applicants that the Will document records what their late mother would have wanted and intended in relation to the division of her property upon her death.

2      Wills Act 2007, s 14(2).

[23]              I also note, by way of completeness, that the position in intestacy is that the applicants, as the late Ms Jackson’s only children, would take the benefit of the entirety of her estate.

[24]              I am satisfied that it is appropriate to make an order declaring the document dated 2 September 2017 to be a valid Will.

Should a grant of letters of administration with Will annexed be made?

[25]              The orders sought under s 5 of the Administration Act 1969 are sought because the Will document does not name an executor. I am satisfied that it is appropriate, given the matters I have already referred to, to grant this application as well, as it is sought.

Result

[26]I make the following orders:

(a)        leave is granted for these applications to be made without notice to any other person;

(b)       the document attached to the affidavit of Raymond Scott Jackson filed in support of his application as annexure B (the Will document) is declared valid as the last and only Will of the late Judith Magdalen Jackson; and

(c)        letters of administration of the estate of the deceased are granted to the applicants.

Harland J