Landreth v Moore

[2016] NZHC 648

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-485-612902 [2016] NZHC 648

UNDER the

Wills Act 2007

IN THE MATTER of

An application under s 14 of the Wills Act

2007 for validation of a handwritten testamentary document as the last will and testament of Raymond Landreth

BETWEEN

LESLIE ALLAN LANDRETH Applicant

AND

EVAN RICHARD MOORE, STEPHEN JOHN RODGERS, KURT MARCO D'CRUZE, ELVINA MARIA D'CRUZE, JAMES AGNELLO POWELL AND JUDE ANTHONY POWELL Respondents

Hearing:	On the papers
Appearances:	R M Reeve for Applicant
Judgment:	12 April 2016

JUDGMENT OF DUNNINGHAM J

[1]      This is an application by Mr Leslie Allan Landreth, for an order pursuant to s 14 of the Wills Act 2007 declaring a document to be the valid will of his deceased brother, Raymond Landreth.   At the same time he applies for an order correcting certain  errors  in  that  document,  if  it  is  declared  to  be  the  will  of  the  late Raymond Landreth (the deceased).

Background

[2]      The deceased was one of eight children.  His siblings were:

ESTATE OF LANDRETH R [2016] NZHC 648 [12 April 2016]

·    Leslie Allan Landreth

·    Dorothy Phyllis Nicol (nee Landreth)

·    Neville Landreth

·    Gwenneth Merle McCaughan (nee Landreth)

·    Stuart John Landreth

·    Mary Rose Shillitto (nee Landreth) (now deceased)

·    Maureen Lillian Feely (nee Landreth)

[3]      The deceased’s last known validly made will was made on 16 August 2004. In it he left all his property to his wife, Constance (Connie) Carolyn Landreth, but, if she did not survive him, then he left the residue of his estate to such of his wife’s nieces    and    nephews,    Kurt    Marco    D’Cruze,    Elvina    Maria    D’Cruze, James Agnello Powell and Jude Anthony Powell as survived him and, if more than one, as tenants in common in equal shares.

[4]      Connie  died  on  1  November  2014.     On  about  18  November  2014, Mr Evan Moore, a solicitor with the firm Wilkinson Rodgers Lawyers in Dunedin, met with the deceased and discussed whether he wished to change his 2004 will which  had  listed  Connie  as  the  primary  beneficiary.    His  evidence  is  that  the deceased said he would not be doing anything at that stage but would consider the issue.

[5]      Mr Leslie Landreth, the deceased’s brother and the applicant, says that he stayed with his brother shortly after Connie’s death, and his brother had said that he needed to change his will now that Connie had passed away.  At the time he left the deceased’s home, on 11 November 2014, the deceased had not, to Mr Landreth’s knowledge, made a new will.

[6]      A neighbour of the deceased, Mr Blair Hill, who has known the deceased for over 30 years, called in to see him on or about 14 November 2014.  The deceased held up a red envelope and showed it to Mr Hill saying it contained his new will. As the deceased did not indicate to Mr Hill that he had seen a lawyer, Mr Hill assumed that the deceased had composed a new will himself.

[7]      Approximately  a  month  later,  on  9  December  2014,  the  deceased  was admitted to Dunedin hospital.   He was discharged on 17 December 2014, where Mr Leslie Landreth first cared for him in the deceased’s own home, and then in Mr Landreth’s home in Invercargill.  However, on 12 January 2015 the deceased was admitted back to hospital and he died at Hospice Southland on 17 January 2015.

[8]      Mr Landreth explains that the deceased’s neighbour, Mr Hill, told him that

the deceased had made a new will which was contained in a red envelope.   On

22 January 2015, while Mr Landreth was going through the deceased’s personal effects he came across the red envelope containing the alleged will in a top drawer of the dresser beside the deceased’s bed.  In it was a handwritten document.  It read as follows:

My Will & Testamonial.  I want to put everything in 4 Divisions

Fulton Hogan Shares 180 Day Westpac Investment My Simple saver, all the money I have saved up All my property car and home I wish to share all these things between Derek Shillitto Darral Shillitto Arrion Shillitto address Oamaru Dorothy Phillis Nichol Brain Nichol Denis Nichol, Tony Nichol 6

Neil Street Coboolture Queensland.  Gwenneth Rose McCaulay Unit 14 12

Edward  Street  Coboolture  Queenstown Aron  McCaulay  Scott  McCaulay

Brent McCaulay, Carrol McCaulay.

Last but not the lest my last Quarter Shares to Maureen Feely, Rachel Feely Jason Feely & Ryan Feely  I know my brothers don’t nead anything They have everything they want.

[9]      The   document   is   not   executed   in   accordance   with   s   11(4)   of   the Wills Act 2007 as it is neither signed nor witnessed.  However, Mr Landreth attaches other examples of his late brother’s handwriting and deposes that he both believes the document was written by his brother Raymond, and expresses his testamentary wishes.

[10]     Mr Landreth explains that despite the misspelling of names, the document expresses the desire to divide the deceased’s estate into four quarter shares which are then to go to Ray’s four sisters, Dot, Gwen, Maureen and Mary and their children (although  in  Mary’s  case,  her  widower  Derek  John  Shillito,  is  named  in  the document in her place).  The document also explains why the deceased’s estate is not divided further so that his brothers or their families receive something, because it acknowledges that his brothers do not need anything as they have everything they want.

[11]     Mr  Landreth’s  affidavits,  both  in  support  of the application  to  have  this document declared a valid will, and in support of the application without notice for an order to correct the will if it is declared valid, explain that he believes the names of the beneficiaries stated in the will should be:

·    Derek John Shillito

·    Darin John Shillito

·    Alan George Shillito

·    Dorothy Phyllis Nicol

·    Brian Nicol

·    Denise Nicol

·    Tony Nicol

·    Gwenneth Merle McCaughan

·    Aaron Martin McCaugan

·    Scott Mark McCaughan

·    Brett Allan McCaughan

·    Carole Marie McCaughan

·    Maureen Lilian Feely

·    Rachel Elizabeth Feely

·    Jason Lesley Feely

·    Ryan John Feely

[12]     I am satisfied, having read the affidavit evidence of Mr Hill, Mr Moore and Mr Leslie Landreth filed in support of the application to have the handwritten note of the deceased left in the red envelope declared a valid will, that the document expressed the testamentary intentions of the deceased.

Consideration of affected parties

[13]     When the application was filed, it was recognised that the application to have this document validated as the deceased’s would affect the rights of the parties named in the 2004 will, which is the last known valid will made by the deceased.

[14]     An application for directions as to service on both the executors and the beneficiaries named in that will, was made to the High Court on 18 September 2015. Directions as to service were made by Brown J on 22 October 2015.  Affidavits of service have since been  filed confirming that the named executors of that will, Mr Evan Moore and Mr Stephen Rodgers, were served on 5 February 2016 and

12 February     2016     respectively,     and     the     four     beneficiaries,     being Kurt Marco D’Cruze,    Elvina   Maria   D’Cruze,    James   Agnello    Powell    and Jude Anthony Powell, were all served on 5 February 2016.

[15]     Elvina D’Cruze has confirmed, by email, that she has no objection to the document created by the deceased in mid-November 2014 being declared a valid will, and has subsequently provided her written consent to this order being made, although that document is undated.  The two named executors have also provided their written consent to the document being declared a valid will.  The balance of the

named beneficiaries have not formally confirmed their position on the application. However, since they have now all been served and some two months have passed without  any  steps  being  taken  to  oppose  the  application,  I  am  satisfied  it  is appropriate to proceed on the basis that they do not oppose the application.

[16]     Given that the deceased’s wife predeceased him, and that a search of the indexes of the registers kept in the Registrar-General’s office have found no record that the deceased ever had children of his own, I consider that all affected parties have  been  served  and  no  party  opposes  the  order  being  made  as  sought. Accordingly, I am satisfied that it is appropriate to make an order declaring that the document, a copy of which is exhibited to the affidavit of Leslie Allan Landreth sworn on 15 September 2015, as exhibit OW, is the valid will of the deceased.

Application to correct the will

[17]     I am also satisfied that, having made that declaration, it is appropriate to grant the application for an order correcting the will of Raymond Landreth (deceased). The names of the beneficiaries should be corrected so that, in the order that they appear in the will, the spelling of those names is as set out in paragraph 13 of the affidavit of Leslie Allan Landreth dated 22 March 2016.

[18]     The application also seeks to record the date the will was composed as being between 11-14 November 2014.   This is based on the fact that Mr Blair recalls visiting the deceased “on or about 14 November 2014”, and being shown the red envelope said to contain the will.   The solicitor, Mr Moore however, says he met with the deceased on or about 18 November 2014 and raised the need for a new will with him on that date.   He thinks it likely the document was written after that appointment.

[19]     Given the uncertainty as to the date it was drafted, but noting it was certainly drafted before the deceased returned to hospital in early December 2014, I think it more appropriate to reflect the date of composition as between 11 November and

9 December 2014.

Summary of orders made

[20]     In conclusion, the following orders are made:

(a)      the  document,  a  copy  of  which  is  exhibited  to  the  affidavit  of Leslie Allan Landreth sworn on 15 September 2015, as exhibit OW, is declared to be the valid will of the deceased, Raymond Landreth;

(b)the last will of Raymond Landreth (deceased) is corrected so that the names  of  the  beneficiaries  are  as  set  out  in  paragraph  13  of  the affidavit of Leslie Allan Landreth dated 22 March 2016;

(c)       the  will  is  also  corrected  by  recording  the  date  of  the  will’s

composition     as     being     between     11     November     2014     and

9 December 2014.

Solicitors:

Wilkinson Rodgers Lawyers, Dunedin