Loader

[2022] NZHC 2154

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2022-485-446

[2022] NZHC 2154

IN THE MATTER OF

Section 14 of the Wills Act 2007

AND

IN THE MATTER OF

an application by GWENDA LOUISE

LOADER for an order that a document be declared a valid will of the deceased GAVIN BRUCE LOADER

On the papers
Judgment:	26 August 2022

JUDGMENT OF MALLON J

Introduction

[1]    Gwenda Louise Loader applied for an order declaring a document to be the valid will of her son, Gavin Bruce Loader, who died unexpectedly on 7 June 2022. The  order was sought on an  urgent  basis.   I made the order  on the  morning of    22 August 2022 with reasons to follow. These are my reasons.

Evidence

[2]    The evidence of how the draft will came about is provided by Bridget Burke, a lawyer. She explains that she was instructed by Gavin on 22 February 2022. Gavin was in a de facto relationship with Davina Moffat from December 2016 until they separated on about 12 February 2022. He instructed Ms Burke to assist him in the resolution of the division of relationship property between he and Ms Moffat. In the course of their initial meeting, Ms Burke asked whether Gavin had a will. He did not and Ms Burke took instructions to prepare a will for him.

RE LOADER [2022] NZHC 2154 [26 August 2022]

[3]A draft will was prepared in accordance with his instructions. The draft:

(a)appointed Gavin’s mother, Gwenda, to be the executor and trustee of the will, and his “son, Sam Marc Creagh”, in her place if she was unwilling or unable to act as executor and trustee;

(b)directed that his body be cremated;

(c)directed that, after paying debts, expenses and duties, the residue be transferred to his son, “Sam”, or to any children if “Sam” predeceased Gavin or did not reach a certain age, or to his parents if “Sam” or any of his children predeceased Gavin, or to his “sisters Judi Robson of Masterton and Wendy McNeil of Whitianga” if his parents predeceased him.

[4]    Ms Burke’s legal executive forwarded the draft will by email to Gavin on    11 March 2022. Gavin responded by email on 21 March 2022. This response provided some details, namely the correct name of Marc (“Marc Auguste Creagh”), the full names of Judi Robson (“Judi Ann Robson”) and where Wendy McNeil lived (“Coromandel”), and said that there was no need to specify an age of survival for Marc because he was already 28 years’ old. Gavin finished his email with the words “[l]ook forward to seeing revised version”.

[5]    On 3 June 2022, Ms Burke’s legal executive forwarded the draft will incorporating the details provided by Gavin. Gavin died unexpectedly on 7 June 2022. It is this document that is sought to be declared as a valid will.

[6]    Ms Burke has since become aware that Marc is Gavin’s stepson, although Gavin referred to him as his son. Her affidavit confirms that the draft will sent to Gavin on 3 June 2022 expresses his instructions at his initial appointment and his further instructions in his email dated 21 March 2022. Her affidavit includes her notes of that initial appointment (consistent with the draft will prepared for him) and the correspondence with Gavin referred to above.

[7]    Further evidence is provided by Gwenda. She provides Gavin’s death certificate. She attended his funeral. She has made inquiries and searches for an earlier will and is satisfied that there is no earlier will than the 3 June 2022 document. Her evidence covers Gavin’s family situation. He was not survived by any child born to or adopted by him or in respect of whom he had admitted paternity or was adjudged to be the father. He was not survived by any grandchildren. He was not survived by  a spouse, civil union or de facto partner. Gwenda has made reasonable enquiries for the purposes of the Status of Children Act 1969.

[8]    Gwenda notes that Marc Creagh is described in the 3 June 2022 document as Gavin’s “son”. She says that Marc was not Gavin’s biological son but that their relationship was similar to that of father and son.

[9]    Gavin’s father (Gwenda’s husband) is Eric John Loader. Gwenda and Eric, would have a beneficial interest in Gavin’s estate on an intestacy. They consent to the application to have the 3 June 2022 document declared as a valid will. On my direction the application was served on Marc and Gavin’s two siblings. They have provided their consent to the application.

[10]   Ms Burke has filed a memorandum confirming that all persons potentially affected by the order declaring the 3 June 2022 document a valid will have consented. She has also explained that Gavin’s former de facto partner does not have an interest in Gavin’s estate except as to the division of relationship property between them and that interest is not prejudiced by granting the order.

[11]   Ms Burke has also explained the reason for urgency. It relates to a caveat over claimed relationship property that will lapse if an application is not made to sustain the caveat and that it is necessary for Gwenda to be appointed executor and administrator of the estate so that she can attend to this.

Assessment

[12]   The grounds for making the order sought are met.1 The applicant is the executor named in the document. The document appears to be a will (it is stated to be a will, follows the usual format of a will, makes provision for the matters it needs to and was prepared to be Gavin’s will by his lawyer). The document came into existence in New Zealand. It has not been executed in the manner prescribed by s 11(4) of the Wills Act 2007 because it is not signed. I am satisfied from the evidence of Ms Burke that it expresses his testamentary intention. It is confirmed by the instruction meeting notes and the correspondence. It is consistent with his family situation at the time it was made. Ms Burke has certified the application.

Result

[13]   An order is made that the unsigned and undated document, a copy of which is marked “A” and attached to the affidavit of the application, is declared valid as the will of Gavin Bruce Loader.

Mallon J

1      Wills Act 2007, s 14.