Lindsay v Lindsay

[2015] NZHC 1527

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2015-454-00002 [2015] NZHC 1527

UNDER

the Wills Act 2007

IN THE MATTER OF

the estate of PETER HOWARD GOSELY

BETWEEN

AILSA JOY LINDSAY and SHARON MARJORY GROVES

Plaintiffs

AND

AILSA JOY LINDSAY and SHARON MARJORY GROVES

Defendants

On papers
Judgment:	2 July 2015

JUDGMENT OF DOBSON J

[1]      This proceeding comprises an originating application for a declaration as to the validity of an unsigned will.  The only beneficiaries named in the last executed will who would be disadvantaged by validation, Sally Anne Pedley (formerly Sally Anne  Moore)  and  Erika  Joan  Drysdale,  have  both  acknowledged  service.    In Ms Drysdale’s case, she has confirmed to the Court that she does not wish to be heard.

[2]      In these circumstances, it is appropriate to deal with the application on the papers.

[3]      The circumstances in which the unexecuted will was prepared have been deposed to by Ms Necia Parker, the legal executive responsible for its preparation. She has deposed that she met with the testator on 3 July 2014 and obtained precise

instructions from him by reference to the extent of changes from the prior will that

LINDSAY v LINDSAY [2015] NZHC 1527 [2 July 2015]

had been completed in 2010.  Ms Parker records the reasons offered by the testator for the changes, and that she canvassed with him the prospect of any Family Protection Act 1955 or testamentary promises claims.

[4]      Thereafter Ms Parker prepared a new draft will and on 15 and 23 July 2014 telephoned the testator  to arrange an appointment for him to sign  it.   On both occasions  he  advised  her  that  he  would  come  back  to  her  when  he  was  free. Ms Parker’s secretary also contacted the testator on 29 July 2014.  He advised at that time  that  he  was  going  to  Fiji  the  following  day  for  a  two  week  holiday  and confirmed that he would contact the law firm on his return to arrange a time to attend at their offices to sign the will.

[5]      The testator died whilst on holiday in Fiji.

[6]      The same executrices named in both the 2010 and 2014 wills have also completed affidavits.   They confirm discussions with the testator as to his testamentary wishes, consistent with the instructions he gave Ms Parker for the 2014 will.

[7]      These are circumstances of the type contemplated by s 14 of the Wills Act

2007, which provides as follows:

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.

[8]      In similar situations, orders have been made.  In Re Tutaki, an unsigned will was validated under s 14.1     After reviewing relevant cases and all the evidence, Andrews J concluded that the document prepared by Ms Tutaki’s solicitor appeared to  be  a  will  and  expressed  Ms Tutaki’s  testamentary  intentions.2      In  that  case, Andrews J found that Ms Tutaki intended to complete and sign the will, but simply did not have time.3  The same was true in this case.

[9]      I  am  accordingly  satisfied  on  all  the  evidence,  and  in  the  absence  of opposition from those disadvantaged by the 2010 will being superseded, that an order validating the 2014 will should be made.  I so order.

[10]     There is no issue as to costs.

Dobson J

Solicitors:

Terrace End Law, Palmerston North

1      Re Tutaki HC Hamilton CIV-2010-419-1208, 13 May 2011.

2 At [38].

3      At [43]–[44].