Lewis v Spence

[2013] NZHC 3420

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2013-476-000292 [2013] NZHC 3420

BETWEEN  MEGAN ELIZABETH LEWIS, SAMUEL MICHAEL DESMOND SCOTT and

DAVID TODD SHAPMAN SCOTT Plaintiffs

ANDWADE ALEXANDER SAMSON SPENCE

Defendant

Hearing:                   16 December 2013

Counsel:                  N J Scott for Plaintiffs

WNP van Vuuren for Defendant

Judgment:                16 December 2013

JUDGMENT OF WHATA J

[1]      Barry Leonard Spence passed away in December 2012.  Not long before he died, he sent to his lawyer a Particulars for Will form.  The particulars appoint his sister, Dianne, as executor/trustee and note that his estate was to be left to his four children to be divided into equal shares.

[2]      A will was prepared by his lawyers based on those particulars and sent to him for execution.  Mr Spence died before formally approving and executing the will.

[3]      Application is now made by three of the four children for a declaration under

s 14 that the document produced by Mr Spence’s lawyers is a will.

[4]      The fourth child, and the defendant, Wade Alexander Samson Spence, does not oppose the declarations sought but has lodged submissions identifying various

matters that his counsel considered must be addressed, including:

LEWIS and SCOTT v SPENCE [2013] NZHC 3420 [16 December 2013]

(a)       Whether the document tabled by the plaintiffs is the correct will;

(b)       Whether the form of the proceedings (by way of statement of claim)

was appropriate;

(c)       Whether the Court can conclude that the deceased had not changed his mind; and

(d)Whether  the  December  2012  Particulars  for  Will  form  had  been altered.

Procedure

[5]      I propose to address first the issue of procedure.

[6]      The Wills Act 2007, and in particular s 14, is concerned with substance rather than form.  I have satisfied myself that all relevant persons have been served and are on notice of this application and that all relevant matters have been pleaded and disclosed.  For that reason, I see nothing in the issue raised by the defendant as to process.

Correct will

[7]      Counsel for the defendant, Mr van Vuuren, notes that three documents have been produced by the plaintiffs in which testamentary intentions are set out:

(a)       The handwritten Particulars for Will form dating from prior to the

deceased’s wife’s death in July 2009;

(b)       The handwritten Particulars for Will document dropped off by the

deceased at his solicitor’s office sometime in December 2012, prior to

14 December 2012;

(c)       The typed draft will prepared by Mr David Sibley, the deceased’s

solicitor.

[8]      While there is some technical merit in this submission, in reality all three documents  drive  to  the  same  outcome,  namely  that  the  estate  shall  be  divided amongst the four children of the deceased in equal shares.  There is some difference in  that  the earlier particulars  provide for substation  of the grandchildren  but  in substance this issue is moot.   I therefore see no reason to decline to make the declaration based on this point.   I am satisfied also that proper instructions were given to the deceased’s solicitor and having viewed the document produced by the solicitor, I am satisfied it meets and records the intentions of the deceased as set out in the Particulars for Will dated sometime prior to 14 December 2012 (and indeed in terms of the July 2009 Particulars for Will).

Change of mind?

[9]      Mr van Vuuren submits that the deceased had no legal advice as to the content  of  his  will  prior  to  completing  either  of  the  Particulars  for Will  forms produced in evidence.

[10]     However, it is noted that the deceased’s solicitors provided legal advice in the letter dated 14 December 2012 which, it is said, suggested the deceased rethink the testamentary provisions he had detailed in the form, having regard to the notion of moral duty owed to his son as opposed to others.

[11]     The relevant passage in the letter states:

2.        Your (sic) will appreciate that I am obliged to raise the following issue with you.  I wish to clarify at the outset that these are not matters that are discussed with other members of the office, and in particular, Jackie. You have a legal obligation to consider provision for the proper maintenance and support of eligible persons such as your children when making your Will.  This is set out in the Family Protection Act.  The standard is that of a just and wise testator.   The definition of a “child” is a natural child or adopted child.  Step-children do not come within the definition of a child.  I appreciate, however, that you may very well have a close association not only with Wade, your legal child, but your step-children Samuel, Megan and David.   However, your primary consideration, with regard to maintenance and support, is Wade.  You owe Wade a moral obligation in this regard.  You do not owe that same moral obligation to Samuel, Megan and David.

[12]     Mr van Vuuren thus submits that I need to be satisfied that the deceased had

not changed his mind as to his testamentary intentions as a result of Mr Sibley’s

letter.  The point raised by counsel is not without merit.  It could also be framed in another way, that the Court should be slow to presume that a deceased will breach his or her legal and/or moral obligations to his/her children.  But the current draft will reflects a consistent position adopted by the deceased in two Particulars for Will documents, the first drafted in 2009 and the second drafted in 2012.  Against this backdrop, it is purely speculative to suggest that the deceased was contemplating something other than what he had clearly stated in those particulars.  In saying that, I do not predetermine any outcome of any application challenging the will should there be one.

Altered?

[13]     Mr van Vuuren submits that to the “untrained eye” different handwriting appears on page 2 of the Particulars for Will form.  It is noted in particular the words “(sister) of Te Anua Office Manager” differ from the balance of the document.

[14]     Mr van Vuuren might be correct, to the extent that to the “untrained eye” there might be a difference.  But the untrained eye is an improper basis upon which to make a reasoned judgment.  If the defendant is seriously pursuing this issue, then he must establish by way of prima facie evidence some basis for it, and has not done so.  Furthermore, it begs the question “so what?”  I do not understand there to be any serious issue about the sister being appointed the executor/trustee of the deceased’s estate.   Furthermore, as I have said, it remains consistent with the position earlier adopted in 2009.  Needless to say, and I should note this was not argued,  I reject any suggestion of impropriety on the part of the deceased’s solicitors, there being no evidence at all to point to fabrication.

Overall assessment

[15]     Section 14 of the Wills Act provides that I may make an order declaring a document valid as a will if I am satisfied that the document expresses the deceased person’s testamentary intention. This power applies to a document that:

(a)       Appears to be a will; and

(b)       Does not comply with s 11; and

(c)       Came into existence in or out of New Zealand. [16]    I may consider the following matters:

(a)       The document; and

(b)       Evidence of the signing and witnessing of the document;

(c)       Evidence of the deceased person’s testamentary intentions; and

(d)      Evidence of statements made by the deceased person.

[17]     Plainly the will drafted by the deceased’s solicitor has the appearance of a will.  Plainly, also, it does not comply in that it is not properly executed. I should also add that, had it been necessary to decide this point, I would have also declared that the Particulars for Will form satisfied the criteria in this regard.  There is strong evidence  that  the  draft  will  complies  with  the  testamentary  intentions  of  the deceased, reflecting, as I have said, a consistent position adopted since 2009 by the deceased.

[18]     I  have  also  considered  the  various  affidavits  filed  in  support  of  the application, including affidavits by Jacqueline Frances Bennet (the deceased’s sister- in-law), David Michael Sibley (the deceased’s solicitor at the time), and Megan Elizabeth Lewis (one of three step-children and beneficiaries under the draft will). Ms Bennet avers to the fact that she is employed by Tripp Rolleston and Co, the firm of solicitors acting for Mr Spence, and the deceased brought her a completed Particulars for Will form.  She says that the deceased told her that his will was very simple and that he was leaving everything equally to the four children.  She attaches a copy of the Particulars for Will to her affidavit.

[19]     Mr Sibley provides  a detailed  affidavit  as  to  the background,  attaches  a colour copy of the Particulars for Will, and says that based on the written details within the Particulars for Will he prepared the draft will.  Ms Lewis then provides

evidence as to the family’s background, including that she is a step-child, together with her brothers, Samuel Michael Desmond Scott and David Todd Chapman Scott. She also confirms that Wade Alexander Samson Spence is the deceased’s son.  She briefly essays the family’s background and she notes that she went through Mr Spence’s papers and found a draft Particulars for Will dated 2009.

[20]     No evidence has been produced by Wade Spence contradicting the matters stated in evidence.

[21]     Overall I am satisfied, therefore, that there is a proper evidential foundation for the draft will, namely that it is based on the testamentary intentions of the deceased and otherwise has the characteristics of a will justifying a declaration that it should be treated as such.

[22]     There shall be orders accordingly.

Solicitors:

Norm Scott Lawyer, Timaru

Heartland Law Limited, Timaru