LaBonte

[2020] NZHC 279

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000008

[2020] NZHC 279

UNDER	the Wills Act 2007
AND
IN THE MATTER	of an application by Justine Joy Baird and Kirsten Mary Knights for validation of the will of George William LaBonte

Hearing:	Determined on the papers
Appearances:	G A Clarke for Applicants
Judgment:	26 February 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 26 February 2020 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re LaBonte [2020] NZHC 279

[1]    The applicants, Justine Joy Baird and Kirsten Mary Knights, seek an order pursuant to s 14 of the Wills Act 2007 that an unsigned and undated document be declared a valid will of the deceased, George William LaBonte.

Background

[2]    Mr LaBonte died between 27 April 2019 and 1 May 2019. He was survived by two adult children who live in the United States. He had been married to Phyllipa Margaret LaBonte until 14 February 2019 when their marriage was dissolved after settlement of their relationship property matters.

[3]    Rebecca Mary Slade, a legal executive employed by Checketts McKay Law Limited of Alexandra, has deposed that she met Mr LaBonte on a number of occasions and had telephone discussions with him. She received instructions from a partner of the firm in relation to taking will instructions from Mr LaBonte in 2019. She recalls at least two telephone conversations with him, pursuant to which she drafted a new will for him.

[4]    The draft will was sent under a covering letter to Mr LaBonte on 12 September 2018.

[5]    Around 30 September 2018 Mr LaBonte telephoned Ms Slade, and they had a discussion which Ms Slade summarised in a handwritten file note. Mr LaBonte stated to Ms Slade that:

(a)he had received the letter and draft will;

(b)he was happy with the appointment of two directors of Checketts McKay Law Limited as trustees (as drafted);

(c)he wanted his sons to receive his estate equally (as drafted);

(d)he emphasised that his ex-wife was to receive nothing (also as drafted); and

(e)he had not decided whether he would be cremated or buried – he would come back to Ms Slade on that so that could be incorporated in the will and the will signed.

[6]    Mr LaBonte did not in fact revert to Ms Slade regarding his instructions for burial or cremation. The draft will remained unsigned at the time of Mr LaBonte’s death.

[7]    The applicants completed a joint and several affidavit. They refer to the events deposed to by Ms Slade. They also provide history (including by reference to exhibited evidence) of Mr LaBonte’s family situation and his last executed will. That was a will dated 11 March 2010 which was executed by Mr LaBonte in the United States. By that will his estate was left to the trustees of the LaBonte Family Trust (constituted by a Deed executed on 22 November 1996) (and varied in March 2010). Mr LaBonte’s former wife is the capital beneficiary of the LaBonte Family Trust.

[8]    Mr LaBonte’s two sons, who are the beneficiaries under the draft will, have consented to the orders sought in this application. So too has Mrs LaBonte who would otherwise benefit from the 11 March 2010 will.

[9]    Ms Baird and Ms Knights have deposed that Mr LaBonte did not have a de facto partner who would have been entitled to succeed on intestacy. They have deposed also that Mr LaBonte was not survived by any child other than the two sons identified in the draft will and that inquiries made have not revealed that Mr LaBonte had any other children.

The application

[10]   Ms Baird and Ms Knights apply for an order that the draft will, a copy of which was exhibited by Ms Slade, be declared a valid will of the deceased.

The power of validation

[11]   By s 14 of the Act, this Court has power to declare a document to be a valid will. The section 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]   Circumstances in which the subject document is a draft will prepared by the deceased’s solicitor in accordance with their instructions have been before this Court on a number of occasions. In Re Hickford (dec'd), MacKenzie J stated in relation to one such will:1

[9]The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:

(a)That he had changed his mind about making a will;

(b)That he overlooked or forgot about signing the will; or

(c)That he did not think that he needed to do anything further.

[13]   MacKenzie J in a subsequent case clarified that his Honour had not intended to suggest that those three possibilities would be the only possibilities which might arise on the facts of any particular case.2

[14]   In the meantime, in Gladwin v Public Trust, Woolford J identified as a further possibility, which on the facts might justify a declaration of validity, that a person

1      Re Hickford (dec'd) HC Napier CIV-2009-441-369, 13 August 2009 at [9].

2      Re Fraser HC Napier CIV-2011-441-700, 20 December 2011, at [8].

(rather than overlooking or forgetting to sign a will) may intend to do so but never get around to it before their death.3

Discussion

[15]   Mr LaBonte’s draft will was prepared by Ms Slade in accordance with precise and comprehensive instructions and in order to avoid having his assets passed to his ex-wife (as they would have done indirectly under his existing will).

[16]   Ms Slade’s evidence indicates that the single matter which Mr LaBonte needed to resolve before he would sign his will was the choice between burial or cremation. I am satisfied in the evidence that his neglect or oversight in resolving that choice provides the probable explanation for his failure to have the will finalised and signed.

[17]   I am satisfied on the evidence that the draft will, both at the time Ms Slade drafted it and as at the date of Mr LaBonte’s death, reflected his testamentary intentions.

[18]This is an appropriate case in which to declare the document valid.

Order

[19]I order:

(a)the draft will document as posted to Mr LaBonte on 12 September 2018 is valid as a will;

(b)there is no order as to the costs of this proceeding.

Osborne J

Solicitors:
Checketts McKay Law Limited, Alexandra

3      Gladwin v Public Trust [2011] 3 NZLR 566 (HC) at [20].