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…

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 Martin

Details

AGLC: Martin [2023] NZHC 3161
Case: [2023] NZHC 3161
Decision Date: 9 November 2023

CaseChat Overview and Summary

The applicants, Jeremy James Mallaby Goodwin and William John Baines, are the executors of the will of the late James Stuart Martin. They have filed an application seeking to validate Mr Martin's draft will under Section 14 of the Wills Act 2007. The draft will was prepared in June 2023 but was not signed by Mr Martin before his death on 1 July 2023. The applicants argue that the draft will accurately reflects Mr Martin's final testamentary intentions, which include changes made in response to significant life events, such as the death of his sister and the onset of dementia in a close friend. The court must decide whether the draft will truly represents Mr Martin's final testamentary intentions, given that he did not sign it before his death.

The primary legal issue before the court is whether the draft will, which was not signed by Mr Martin before his death, accurately reflects his final testamentary intentions. The applicants argue that the draft will, which incorporates changes made by Mr Martin himself, is a true representation of his final wishes. The court must consider the circumstances of Mr Martin's death and whether the changes to the will align with his intentions as evidenced by his actions and communications with his solicitors. The reasoning of the court hinges on whether the draft will, despite being unsigned, can be validated as a true reflection of Mr Martin's final wishes, balancing the need for procedural fairness with the intention of the deceased.

The court found that the draft will accurately reflects Mr Martin's final testamentary intentions. McQueen J accepted the evidence provided by the executors and the solicitor who handled Mr Martin's testamentary arrangements. The court noted that Mr Martin had actively engaged in the process of updating his will and that the changes reflected significant life events. The court determined that the reason Mr Martin did not sign the draft will was due to his hospitalization and subsequent death, which did not leave him an opportunity to sign the document. The court concluded that the draft will represents Mr Martin's genuine intentions and that a validating order should be made.

The court made the following orders: (a) validating the unsigned draft will of James Stuart Martin prepared in 2023 as his final will; (b) granting probate of the draft will to the applicants; and (c) ordering that the costs of the application be paid from the deceased's estate. The decision ensures that Mr Martin's final testamentary intentions are honored, despite the procedural irregularity of the unsigned draft will.

Orders