Loffhagen v Paterson
[2016] NZHC 1178
•2 June 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000124 [2016] NZHC 1178
BETWEEN SIMON STUART LOFFHAGEN AND
SANDRA MARIE SCRIVENER Applicants
AND
BESSIE ISABEL PATERSON Respondent
Hearing: Dealt with on the papers Judgment:
2 June 2016
JUDGMENT OF GENDALL J
[1] Walter William Grieve (Mr Grieve) died at Christchurch on 11 December
2015. In 2014 solicitors in Leeston, Ronald W Angland & Son assisted the deceased in re-drafting a will.
[2] Mr Grieve had an earlier will made at the time he was in a relationship with Margery Joyce Roskam (Ms Roskam). This earlier will was dated 9 July 1998. Ms Roskam died in April 2010.
[3] A draft will was created by Ronald W Angland & Sons for Mr Grieve in 2014 but was not signed. In March 2015 the draft was re-dated and sent to Mr Grieve who lived in Rangiora at the time.
[4] Some time went by and eventually Mr Grieve made an appointment with the assistance of the first named applicant, Simon Stuart Loffhagen (Mr Loffhagen) to have the draft will executed. That was to take place before a firm of solicitors in Rangiora (Law4You) as Mr Grieve indicated he was not able to travel to Leeston. The will was also to be signed along with an Enduring Power of Attorney that had
been prepared for him.
LOFFHAGEN v PATERSON [2016] NZHC 1178 [2 June 2016]
[5] It seems that unfortunately Mr Grieve was hospitalised before he could keep the appointment at the lawyers in Rangiora, to sign both his will and the Enduring Power of Attorney.
[6] A further appointment to sign the new will was made with Law4You, that being for Tuesday 15 December 2015. This was approximately one week after the initial appointment but unfortunately Mr Grieve died in the meantime on
11 December 2015.
[7] The present applicants seek the validation of the draft will that was due to be signed by Mr Grieve during these December 2015 appointments but was never executed.
[8] This application which was brought on 3 March 2016 is made by Mr Loffhagen and Sandra Marie Scrivener (Ms Scrivener). Ms Scrivener, as I understand it, is the granddaughter of Mr Grieve’s previous partner, Ms Roskam, and she was also one of the residuary beneficiaries under Mr Grieve’s July 1998 will. Mr Loffhagen is Ms Scrivener’s partner. It seems from material before the Court that Mr Loffhagen and Ms Scrivener maintained a close relationship with Mr Grieve and particularly in the latter years of his lifetime.
[9] On 10 May 2016 this application was opposed by a Notice of Opposition filed by Patricia Winifred Naismith (Ms Naismith) who was a person directed to be served with the proceeding. Ms Naismith is the second daughter of the late Ms Roskam, Mr Grieve’s previous partner. She was also one of the residuary beneficiaries under his previous July 1998 will.
[10] This Notice of Opposition initially was supported by a number of affidavits, and it was advanced on the following grounds set out in the Notice:
3.The grounds on which Patricia Winifred Naismith opposes the making of the orders are as follows:
3.1 The unsigned document did not express the deceased’s
testamentary intentions which were as recorded in the signed
1998 will.
3.1.1.The deceased made mutual wills with his lifelong partner of more than 40 years, Joy Roskam, and that the last signed will which he made, along with her, records his testamentary intentions. He never signed, nor did he take any action to sign, any will after 1998 which reflects his testamentary intentions to honour their mutual arrangements.
3.1.2. While the deceased made proposals on various occasions to change his will, following the death of Joy Roskam, at no time did he ever execute a new will. That is consistent with an intention to maintain the 1998 will as his testamentary intentions.
3.1.3The deceased had ample opportunity to execute a revised will over many years, yet never did so. That is wholly consistent with an intent not to change the
1998 will and to maintain that will as the expression of his testamentary intentions.
3.1.4The deceased did not make the arrangements with Law4You nor did he make any appointments. Mr Simon Loffhagen made those. It is not clear what action, if any, the deceased would have taken in respect of the arrangements Mr Loffhagen had made.
3.1.5The deceased, from the time he received the revised draft will in March 2015 and up until the time of his passing on 11 December 2015 remained capable of making arrangements to sign the will if it was his intention to do so. The draft will was in his possession and arrangements could have been made to sign with sufficient witnesses irrespective of the associated Enduring Power of Attorneys. This consistent behaviour illustrates an ongoing intention to maintain the 1998 will as his testamentary intentions.
…
[11] This matter was then set down for an opposed hearing to take place today,
2 June 2016. Shortly before that date, Ms Naismith, through her counsel, confirmed that her opposition to the application was withdrawn. No other opposition to the application had been filed or has been notified.
[12] This matter has accordingly proceeded on the papers and I give my decision on this basis. With the withdrawal of Ms Naismith’s opposition, the application is now effectively unopposed.
[13] The application is brought in terms of s 14 of the Wills Act 2007. As
McKenzie J noted in Re: The Estate of Norman Rob Campbell:1
[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.
[14] Section 14 provides that I may make an order declaring a document (such as the draft will here) valid as a will if I am satisfied that the document expresses the deceased person’s testamentary intentions. This power applies to a document that:
(a) appears to be a will; and
(b)does not comply with s 11; (as to being in writing and properly signed); and
(c) came into existence in or out of New Zealand.
[15] In considering the application I may take into account the following matters: (a) the document; and
(b) the 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.
[16] In this case, clearly the draft will prepared by Mr Grieve’s solicitors is in writing and has the appearance of a will. Plainly, however, it does not comply with
the Wills Act 2007 in that it has not been properly executed by Mr Grieve.
1 Re: The Estate of Norman Rob Campbell [2014] NZHC 1632 at [4].
[17] Notwithstanding these matters, I am satisfied there is strong evidence before the Court that the draft will complies with the testamentary intentions of Mr Grieve reflecting, I find, a consistent position he has adopted since at least 2014.
[18] I say this bearing in mind in particular affidavits which have been filed in this proceeding in support of the present application. The evidence filed in this matter by Mr Loffhagen himself, Bessie Isabel Paterson, a solicitor who acted for Mr Grieve for some time, Rex Barry Barker a long time school friend of Mr Grieve, Margaret Mae Jean McGrath an old friend of Mr Grieve for some 50 years, and Ms Scrivener, all tend to confirm that the draft will prepared for Mr Grieve represented his clear testamentary intentions here.
[19] Also, late in the piece, on 24 May 2016, an affidavit of Barry Thomas King, a builder from Rangiora, was filed. In this affidavit Mr King, who was Mr Grieve’s immediate neighbour, indicates he had much to do with Mr Grieve from about 2012 when, through Mr Grieve’s deteriorating health, he assisted him on a regular basis. Mr King’s evidence is that Mr Grieve said to him unequivocally on a number of occasions that his motorcars were going to Mr Loffhagen which is in accordance with the draft will and contrary to his July 1998 will.
[20] It would seem also that there was no suggestion that Mr Grieve had any intention to change or amend the terms of his draft will which had been prepared and was with him for some time. The only reason it seems that it was not executed was simply that his death intervened before he was able to meet the revised appointment with the Rangiora lawyers which had been made for him. The fact also, that the will was to be signed along with an Enduring Power of Attorney and therefore seemed to need his attendance at the lawyers’ office was perhaps unfortunate here.
[21] Given, too, that effectively now this application is unopposed and, in my view, there is little in the original grounds of opposition listed in Ms Naismith’s Notice of Opposition (which are now withdrawn in any event), I am satisfied overall that there is a proper evidential foundation for the draft will. I conclude that the draft will is based on the testamentary intentions of Mr Grieve, otherwise it has the
clear characteristics of a will, and it justifies a declaration that it should be treated as such.
[22] This application therefore succeeds.
[23] For all the reasons I have outlined, I am satisfied that the document sought to be validated does express Mr Grieve’s testamentary intentions. There will be an order declaring valid as the last will of Mr Grieve the draft will annexed to this judgment as Schedule “A”.
...................................................
Gendall J
Solicitors:
Dale Lester, Christchurch
SCHEDULE “A”