Little v Little - [2020] NZHC 2612

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-000060

[2020] NZHC 2616

UNDER the Wills Act 2007

IN THE MATTER

of the Will of JENNIFER FLORENCE WARD

BETWEEN

ANTHONY JAMES IRVINE

Applicant

Hearing: On the papers

Appearances:

M J Foley for Applicant

Judgment:

7 October 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 7 October 2020 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 7 October 2020

Introduction

[1] This is a without notice application for an order under s 14 of the Wills Act 2007 (the Act), declaring a document to be the valid will of the deceased, Jennifer Florence Ward.

RE WARD [2020] NZHC 2616 [7 October 2020]

[2] As a preliminary issue I must determine, under r 7.46(2) High Court Rules 2016 whether this application can be dealt with without notice. I am satisfied that all persons who might be affected by the making of the order sought are aware of the application and have consented to it. In those circumstances, I am satisfied that the interests of justice require the application to be determined without notice.

Background to the application

[3] The deceased made a will in 1998, when she was married to her first husband, Mr Ward. With Mr Ward she had two children; Joanna (Jodie) Ward and Darren Keith Ward. Both children have significant intellectual disabilities and, although they are now adults, they live in sheltered accommodation under the care of IHC. Mr Ward died on 24 April 2003. The deceased subsequently married Peter William Kissell in 2011. The second marriage had the effect of revoking the will the deceased had made in 1998. Mr Kissell died on 17 February 2013.

[4] The deceased met with her lawyer, Mr Anthony Irvine, at Scholefield Law in Invercargill in late 2019. During this meeting Mr Irvine explained that her 1998 will had been revoked on her marriage to Peter Kissell.

[5] They reviewed that will and decided there were only three minor changes required:

(a)her occupation needed to be changed as she was now a physio assistant;

(b)it was decided that rather than reappoint Mr Irvine as co-executor who was close to retirement, she would appoint one of the other partners in that firm; and

(c)as co-trustee of the K J and J F Ward Family Trust (the Trust), Mr Irvine discussed with her, her wishes and the needs of her children as set out in cl 6 of the will.

[6] The deceased gave Mr Irvine instructions to update her will accordingly and he did so. It is this draft will which is sought to be validated as her will.

[7] Although Mr Irvine endeavoured to make contact with the deceased, unfortunately before that occurred she died on 13 March 2020.

[8] The draft will leaves two legacies. Both legacies are of $15,000, one of which is to go to the IHC (Southern Branch), and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Little v Little

Details

AGLC: Little v Little [2020] NZHC 2616
Case: [2020] NZHC 2612
Decision Date: 7 October 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Anthony James Irvine applied for an order under section 14 of the Wills Act 2007 to declare a document as the valid will of the deceased, Jennifer Florence Ward. The application was made without notice, and all interested parties had consented to the application. The central legal issue was whether the document expressed the deceased's testamentary intentions, as required by section 14 of the Act. The court found that the document, despite not being signed and witnessed in the prescribed manner, did express the deceased's intentions based on the affidavit provided by her lawyer, Mr Anthony Irvine, and the context in which the will was drafted.

The court's reasoning involved examining the circumstances surrounding the creation of the draft will. Mr Irvine had met with the deceased in late 2019 to discuss updates to her will, and they identified only minor changes needed. The deceased had provided clear instructions to Mr Irvine, who had prepared a draft reflecting her updated wishes. Although the deceased had not seen the draft before her death, the court concluded that this was not a barrier to validating the will, as New Zealand law does not require that the deceased see the final version of the will. The court was satisfied on the balance of probabilities that the document expressed the deceased's intentions. Accordingly, the court declared the document to be the valid last will of Jennifer Florence Ward.

Orders