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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jackson

Details

AGLC: Jackson [2024] NZHC 297
Case: [2024] NZHC 297
Decision Date: 23 February 2024

CaseChat Overview and Summary

The applicants, Raymond Scott Jackson and Kimberly Mary Jackson, sought a declaration that a document dated 2 September 2017 is the valid Will of their late mother, Judith Magdalen Jackson, and for letters of administration with the Will annexed to be granted to them. The Will, found by the applicants in their mother's filing cabinet, expresses Judith's testamentary intentions but fails to comply with the formal requirements of s 11 of the Wills Act 2007, such as signing and witnessing. The applicants argued that the document should be declared valid as it clearly reflects their mother's wishes. The court considered the statutory provisions under s 14 of the Wills Act, which allows for a document to be declared valid if it expresses the deceased's testamentary intentions, even if it does not comply with the formalities. The applicants provided affidavits and evidence supporting the document's validity, and the court found no other document purporting to be a Will. Given the consistency between the document's content and the applicants' recollections of their mother's intentions, the court was satisfied that the document expresses Judith's testamentary intentions and declared it to be her valid Will. The court also granted letters of administration with the Will annexed to the applicants because the Will does not name an executor.

The court found the application appropriate to be determined without notice, as no other parties were adversely affected by the declaration of the Will's validity or the grant of letters of administration. The court considered the submissions that the applicants had made reasonable enquiries under the Status of Children Act 1969 and confirmed the absence of any other potential claimants. The estate consists primarily of the value of Judith's home and a small amount of cash. The applicants wished to honor their mother's expressed wishes and all intended bequests. The court concluded that the applicants had satisfied the requirements under s 14 of the Wills Act for the declaration of the document as a valid Will and found it appropriate to grant the letters of administration with the Will annexed to the applicants.

Orders