Martin

[2023] NZHC 3161

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-578

[2023] NZHC 3161

IN THE MATTER

of the estate of the late JAMES STUART MARTIN

UNDER

Section 14 of the Wills Act 2007

AND UNDER

Part 19 of the High Court Rules 2016

BETWEEN

JEREMY JAMES MALLABY GOODWIN AND WILLIAM JOHN BAINES

Applicants

Hearing:	On the Papers
Counsel:	K H Lawrence for Applicants
Judgment:	9 November 2023

JUDGMENT OF McQUEEN J

[1]                 The applicants are the executors of the will of James Stuart Martin (the deceased). The applicants have filed an application seeking to validate Mr Martin’s draft will under s 14 of the Wills Act 2007.

Service and appropriate registry

[2]                 The applicants also made an interlocutory application without notice for orders as to service and conduct of proceedings. On 3 October 2023, Grice J issued a Minute making a direction that the Wellington registry is the appropriate registry in which to file this application and giving further directions as to service.1

1      Re Estate of Martin (dec’d) HC Wellington CIV-2023-485-578, 3 October 2023 (Minute of Grice J).

MARTIN [2023] NZHC 3161 [9 November 2023]

[3]                 In relation to service, Grice J considered that the need for procedural fairness for those who may be affected and may wish to be heard had to be balanced with the need to ensure that the proceedings are conducted in a proportionate and cost effective way, and without an unnecessary number of parties participating. She then made directions which included the service of the proceeding on certain parties, and service on the balance of the legatees of a summary of the will and the draft will, together with an indication of the effect on the relevant legatee of the validation of the draft will and advising them that if they wished to take any further steps they should contact the solicitors for the executors.

[4]                 Counsel for the applicants, Ms Lawrence, has now filed a memorandum dated 31 October 2023 and an affidavit of Robyn Thomson of the same date confirming that service as directed by Grice J has been completed. In her memorandum, Ms Lawrence records the position as to service as follows:

Summary of service

10.Service is now complete.

11.Rachael Bilski is the party who is most adversely affected by the validation application. If it is successful, Rachael will not receive a legacy of $10,000, and she will received reduced travel benefits.

12Rachael confirmed (by email) that she would accept service by email and this was effected. She has not made any further contact or filed any documents in the proceeding.

13.The Steam Tug William C Daldy Preservation Society receives approximately $1,428.57 less if the validation application is successful. It confirmed receipt and has not made further contact or filed any documents in the proceeding.

14.Neil Burgham is invited to attend a celebratory dinner and has not responded to the letter to him.

15.All other parties directed to be served or notified have indicated either their consent to the application, or that they will not take steps.

16.It is submitted that this matter may now be referred to the duty Judge (or Her Honour Justice Grice) for consideration on the papers, in accordance with the submissions contained in the memorandum of counsel dated 6 September 2023.

17.Counsel is otherwise available to assist as may be required.

[5]                 In particular, I note that the court documents were served on Rachael and her daughter on 11 October 2023, Rachael’s agreement as to service by email having previously been obtained. On 11 October 2023, the Steam Tug William C Daldy Preservation Society acknowledged receipt of the letter explaining the effects of the draft will and enclosing the 2021 will, the draft will and the Minute of the Court dated 3 October 2023.

[6]                 I am satisfied that the directions for service made by Grice J have been completed and that no matter has been raised by any of the parties served, nor formal opposition indicated, so that it is now appropriate for the Court to consider the originating application for validation of Mr Martin’s unsigned will.

Originating application for validation of draft will

[7]                 I thank Ms Lawrence for the helpful discussion in her memorandum of counsel of the background to this matter, the reasons why she submits the application should be granted and the nature of the validation power in s 14 of the Wills Act.

[8]                 The application is supported by affidavits from Mr Baine and Mr Goodwin, the two named executors of both Mr Martin’s final will dated 10 December 2021 (the 2021 will) and the draft will sought to be validated which was prepared in June 2023 (the draft will). The application is further supported by the affidavit from Ms Jarman, a senior legal executive at  the  law  firm  Carter  Atmore.  Ms Jarman  dealt  with  Mr Martin in relation to his testamentary arrangements, including in relation to the draft will.

Background events

[9]                 It is necessary to set out the factual background only briefly. Mr Martin was particular about his testamentary arrangements and kept in touch with Ms Jarman about them, including to update her about contact details of the people and organisations named in his 2021 will. Mr Martin had no partner nor children. His 2021 will provided numerous specific legacies and bequests and left his residuary estate to the Order of St John, Auckland Division.

[10]             In April 2023, Mr Martin turned his mind to changing his 2021 will, principally in response to two main changes in his life, being the unexpected death of his sister Maureen in April 2023, and the onset of dementia in his friend and travel companion Rachael. Ms Jarman provided Mr Martin with a Word version of his 2021 will so he could mark up the will with the changes he wished to make. Ms Jarman followed up with Mr Martin in May 2023, asking how he was getting on with the amendments. He advised her that he had been in hospital since mid-April but hoped to be out soon and would be in touch.

[11]             On 20 June 2023, Mr Martin sent Ms Jarman an updated version of his new will, showing the changes he wished to make. The changes:

(a)removed the legacy of $10,000 to Rachael;

(b)removed the legacy to Maureen and provided it would instead go to her daughter, Stephanie;

(c)reduced the travel benefit to Rachael to $20,000 and provided that she would need caregivers to accompany her on that travel;

(d)increased the budget for a dinner event to $20,000 and included two further attendees;

(e)removed the rail journey ticket and airfares which were left to Rachael;

(f)provided an accommodation allowance for Fred and Pat Owing’s travel;

(g)left Mr Martin’s Air New Zealand staff travel benefits to Mr Baines rather than to Rachael; and

(h)left personal items to Mr Baines rather than to Maureen.

[12]             Ms Jarman tidied up the will (for spelling and grammar) but made no other changes. On 22 June 2023, she sent Mr Martin a “clean” copy of the document and

asked him if any other amendments were required. Mr Martin emailed Ms Jarman providing updated details of bank accounts and insurance details. He also said he was still “thinking about the TVs”, by which Ms Jarman understood that he meant he might change the hospital wards for the gifts of his two televisions, but did not mention any other changes. Ms Jarman wrote to Mr Martin again on 29 June 2023, suggesting ways to deal with the televisions so that issue would not hold up him signing the will. She attached another copy of the new will and suggested she could visit him to arrange signing. Ms Jarman did not hear further from Mr Martin. Nonetheless, Ms Jarman is sure that Mr Martin would have signed the draft will, had he not died. Her only reservation relates to whether he may have changed his mind about which hospital wards were to receive his televisions.

[13]             Mr Baines, who is Mr Martin’s brother in law, visited Mr Martin often while he was in hospital. Mr Baines explains that about a week before Mr Martin died (which was on 1 July 2023) he spoke to Mr Martin about his will and says Mr Martin told him he was just tying up  the last  changes  and  hoped  to  have it  done soon. Mr Martin was expecting to be discharged from hospital but contracted COVID-19 and passed away. Mr Baines says that in his view, the draft will reflects Mr Martin’s testamentary intentions at the date of his death, and much more so than the 2021 will.

[14]             Mr Goodwin also confirms his belief that the draft will represents Mr Martin’s final testamentary intentions. He records that the estate is worth approximately NZD

$500,000, and notes that given the high number of legatees named in the  will and Mr Martin’s very specific instructions, the estate will be more complicated and expensive than most to administer.

Discussion

[15]             I agree with Ms Lawrence that the principal question is whether the draft will reflects Mr Martin’s final testamentary intentions. In this context, the reason he did not sign the draft will is an important inquiry.2 I am satisfied, having read the affidavits of Ms Jarman and Mr Baines, that the circumstances of Mr Martin’s death in hospital

2      Gladwin v Public Trust HC Auckland CIV-2010-404-1666, 9 August 2011 [2011] 3 NZLR 566, at [21]–[22]; citing Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009 at [8]–[10].

explain why Mr Martin did not sign the draft will. It is also apparent that Mr Martin turned his mind to changing his will, principally in response to the main changes in his life relating to his sister Maureen and his friend Rachael, and that the main changes to the will reflect this. The evidence confirms that Mr Martin made contact with his solicitors and completed the changes to his 2021 will himself, and that the draft will reflects those changes as “tidied up” by his solicitors for grammar and spelling reasons. Accordingly, I accept that the draft will reflected Mr Martin’s final testamentary intentions.

[16]             As Ms Lawrence records, the only matter that the correspondence indicates was unresolved was a minor matter regarding the hospital boards to receive certain televisions Mr Martin owned. I do not consider that this matter amounts to a barrier to the Court finding that the draft will reflected Mr Martin’s final testamentary intentions.3 Having satisfied myself that the draft will represents Mr Martin’s genuine intentions, it can ordinarily be expected that a validating order will be made.4

Orders

[17]For the reasons set out above, I make the following orders:

(a)an order validating the unsigned draft will of James Stuart Martin (the deceased) prepared by his solicitors in 2023 (the draft will) as the final will of the deceased;

(b)an order granting probate of the draft will to the applicants; and

(c)an order that the costs of this application be paid from the deceased’s estate.

McQueen J

Solicitors:
Greg Kelly Trust Law, Wellington for Applicants

3      Re Baird [2020] NZHC 279 at [16]–[18], where a draft will was validated despite the will-maker not having decided whether they preferred burial or cremation.

4      Balchin v Hall [2016] NZHC 837 at [11].