Jones (Estate of Thorne)

[2020] NZHC 1965

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-174

[2020] NZHC 1965

IN THE MATTER OF	Section 14 of the Wills Act 2007
IN THE ESTATE OF	LEANNE DEBORAH THORNE
IN THE MATTER OF	an application by DANIELLE ANNE JONES

On the papers
Counsel:	P A McKenzie-Bridle
Judgment:	6 August 2020

JUDGMENT OF CULL J

[1]    This proceeding concerns the Estate of Leanne Thorne (the deceased) and an application by her daughter under s 14 of the Wills Act 2007 seeking the Court’s validation of a document prepared on 1 June 2017 as the deceased’s last will (the draft Will).1 Danielle Jones, the deceased’s daughter, makes this application with the consent of her two siblings.

[2]    In a prior will dated 5 November 2012 prepared by the Public Trust, the deceased’s Estate was  left  to  her  husband,  from  whom  she  had  separated  on  20 December 2013. The will made the Public Trust executors. In the event that the gift to her former husband failed, the Estate would have gone to his two daughters from a previous marriage.

1 The draft Will does not comply with the requirements for a valid will in s 11 of the Wills Act 2007.

Jones (Estate of Thorne) [2020] NZHC 1965 (6 August 2020)

[3]    In 2019, the deceased gave will instructions to a law firm and a draft was subsequently prepared.

The section 14 application

[4]    Counsel for Danielle filed these proceedings and sought directions for service and non-party discovery as the law firm had not provided Danielle with the 2019 draft Will on the grounds of privilege. Simon France J gave directions for service on the deceased’s former husband, his daughters and the law firm with a direction for non- party discovery of the draft Will and any accompanying instructions. He directed that an affidavit from the legal executive should be filed.2 In  making those  orders, Simon France J observed that the difficulty facing the Court in this proceeding is to determine which is the valid will and consequently who is the executor.

[5]All parties who were served responded in the following ways:

(a)consents were filed by Danielle’s siblings for her to proceed with this application;

(b)the deceased’s former husband has taken no steps or made any contact with Danielle’s Counsel. The date for his response was 1 July 2020, which has since passed;

(c)his children have taken no steps and the date  for their responses of  29 June 2020 has since passed;

(d)the Public Trust, the executor under the 2012 will, has filed an agreement to abide by the Court’s decision.

[6]    The law firm, from whom non-party discovery was sought, complied with the Court’s order. An affidavit of the legal executive was filed, annexing the deceased’s will instructions and the draft Will. The representative partner for the law firm has filed a memorandum stating the firm does not wish to be heard.

2      Estate of Thorne HC Wellington CIV-2020-485-174, 15 May 2020.

[7]    This proceeding was placed in the Judges’ Chambers List, following service of the proceedings as directed and Mr McKenzie-Bridle proposed that as the deceased’s former husband had taken no steps, being the former beneficiary under the deceased’s 2012 will, this matter could be determined by formal proof. I declined to undertake a formal proof hearing, because the affidavit filed by the legal executive raised further questions and required further information.

[8]    The legal executive confirmed that one of the deceased's children approached her law firm, advising that the deceased wished to update her will. The family member filled in the details in a form headed "Will Instructions". The legal executive then attended on the deceased and clarified with her the details provided by her family on the form and confirmed that they reflected her testamentary wishes. Unfortunately, despite the legal executive stating that there was no doubt that the deceased's daughter was to be the executor and that the deceased's estate would be split equally among her three children, the draft Will did not reflect that.

[9]    Contrary to the deceased’s will instructions, the draft Will gives to the deceased's former husband, who is wrongly named as Danielle Anne Jones, "all my assets absolutely." The legal executive in her affidavit alludes to "an obvious error in the draft will" referring to the misuse of a template for a surviving spouse to be the executor of the draft Will. That however is not the only error. There is an outright bequest in clause 3 to either "my husband" or "Danielle Anne Jones", neither of which accord with the deceased's will instructions, given to the legal executive or to her friend, a Justice of the Peace, who prepared the draft Will on 1 June 2017.

[10]   The legal executive’s affidavit was silent as to whether the law firm’s draft Will was sent to anyone and whether it was ever sent to the deceased. Having passed the will instruction form to her personal assistant, the legal executive does not recall receiving back the draft Will. With two potential wills before the Court, I directed that Danielle’s Counsel obtain a further affidavit from Danielle to respond to the affidavit of the legal executive and clarify whether she or any member of the family had seen the law firm’s draft Will and whether such a draft was found in the deceased’s belongings after her death. I also sought clarification as to the identity of which family member was referred to in the legal executive’s affidavit.

[11]   Danielle and her sister Amiee filed affidavits, confirming that Amiee went to the law firm with the deceased in June 2019 and was given the will instruction sheet. Amiee went through the will instruction sheet with her mother carefully and filled it in for her, as her mother could not write at the time, due to her illness. Amiee confirmed that she left the completed will instruction sheet with her mother, on the understanding that the legal executive was to uplift it when she visited the deceased to go over the details. Amiee did not hear from the law firm again before her mother died. She confirms that she had not seen any draft Will prepared on the basis of those instructions until the legal executive filed her affidavit and annexed the draft in these proceedings. Amiee did not believe her mother received it or saw it before she died.

[12]   Danielle also confirms that the law firm’s draft Will was not in her mother’s possessions when she died and repeats her original affidavit, that her mother contacted her close friend, who is a Justice of the Peace, to prepare a will. The evidence from the Justice of the Peace, who described in detail the taking of the deceased’s draft Will, confirms that the deceased did not tell her she had made a previous will. In the draft Will, she appoints Danielle to be executor of her Estate, revokes all previous wills or “testamentary writings made by me”, makes special bequests to each of her children, and bequests the residue of her Estate to be divided equally among the three children. This reflects the instructions given in the wills instruction form to the law firm.

Decision

[13]   I am satisfied that the document named the last will (the draft Will) and testament prepared on 1 June 2017 expresses the deceased’s testamentary intentions. Accordingly, I make an order declaring the document valid under s 14 of the Wills Act 2007.

[14]   Mr McKenzie-Bridle has drawn the Court’s attention to an application for probate. He questions whether, in the event that the 1 June 2017 Will is declared valid, the grant of probate is necessary.

[15]   An application to validate a will under s 14 is a different legal exercise to the grant of probate. It is governed by the Administration Act 1969 and the High Court Rules 2016. The fact that a will is validated under s 14 does not render the application

for probate unnecessary. While a consent to the grant of probate necessarily encompasses the making of an order under s 14,3 the same is not true in the reverse.4 I direct therefore that the application for probate of the 1 June 2017 Will proceed.

Cull J

Solicitors:
Bell & Co, Wellington for the applicant

3      Estate of Cornelius, deceased [2012] NZHC 563.

4      See, for example, High Court Rules 2016, pt 27 and sch 1. There are particular requirements for grants of administration including for probate which will generally not be met by s 14 Wills Act applications.