McIntosh v McIntosh HC Napier CIV-2011-441-000187

[2011] NZHC 1223

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-000187

IN THE MATTER OF     The Estate of RAE EDWARD McINTOSH incorrectly shown in the Will as Ray McIntosh, deceased

BETWEEN  RAYMOND MAURICE MCINTOSH Applicant

ANDRAYMOND MAURICE MCINTOSH, ROBIN MCINTOSH, DARYL JOHN MCINTOSH, GLENN MCINTOSH, DANIEL RAYMOND MCINTOSH AND WAYNE ANTHONY MCINTOSH Respondents

Hearing:         7 July 2011

Appearances: J L Bates for Applicant

Respondents in person

Judgment:      1 September 2011 at 4:00 PM

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 1 September 2011 at 4:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

Solicitors:           Gresson Grayson, P O Box 1045, Hastings 1045

Fax: [phone] – J Bates

MCINTOSH V MCINTOSH HC NAP CIV-2011-441-000187 1 September 2011

[1]      This application for orders under the Wills Act 2007 is made in relation to a document  which  is  expressed  to  be  the  last  will  of  Rae  Edward  McIntosh. Mr McIntosh died in Hastings on 1 June 2010.  He left a will prepared by his then solicitor Harold Grayson which appears to comply with requirements for a valid will in s 11.  It is in writing, as required by s 11(1).   It is signed by the will maker as required by s 11(2).  It is witnessed in the manner required by s 11(3) and (4).  The application has been made because there are other aspects of the will that have given cause for concern.

[2]      The document is a carbon copy and the original cannot be located.   It is undated.  It has additional handwriting on the top of page 1 with no indication as to who put it there and when.  Finally, clause 3, which deals with the disposition of the deceased’s motor vehicle, has had words deleted from it without any indication as to who made the deletions and when.

[3]      One  of  the  executors,  Jeffrey  Drinkwater,  renounced  Probate  after  the deceased’s death.   The other executor is Rae McIntosh’s son, Raymond Maurice McIntosh.  Mr Raymond McIntosh has applied for orders:

(a)       Declaring the document that appears to be the deceased’s last will is a valid will;

(b)      Granting probate of the will in solemn form;

(c)       That his costs be paid from the deceased’s estate.

[4]      The application is not opposed.  Although served, the persons directed to be named as respondents have taken no steps.

[5]      Section 14 of the Wills Act 2007 provides for the High Court to declare a will valid if it is satisfied that the document expresses the deceased person’s testamentary intentions:

14       High Court may declare will valid

(1)      This section applies to a document that—

(a)      appears to be a will; and

(b)      does not comply with section 11; and

(c)      came into existence in or out of New Zealand.

(2)       The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3)      The Court may consider—

(a)      the document; and

(b)      evidence on the signing and witnessing of the document; and

(c)      evidence on the deceased person's testamentary intentions;

and

(d)      evidence of statements made by the deceased person.

[6]      The circumstances of the signing of the will are explained in the affidavits of

Mr Grayson and his then legal executive, Ms Yeatts.

[7]      Starting  with  the  handwriting  on  the  first  page  of  the  will;  Ms  Yeatts identifies the handwriting as being hers.  Although she does not recall the document specifically, it was her normal practice to prepare a will in accordance with instructions given by one of the partners for whom she worked at the time, in that case Mr H R Grayson.  It was her practice to also hand write on the top of the carbon copy any further information needed to finalise the will.  In Mr McIntosh’s case she needed his full name and occupation.  Ms Yeatts goes on to say that she would have handed to Mr Grayson the carbon copy of the will with the words she had added in handwriting to send to Mr McIntosh for his approval.

[8]      The lack of an original will and the deletions to clause 3 are explained by Mr Grayson.  Rae McIntosh had been a client and friend of Mr Grayson for many years.   At the beginning of winter 1995 Mr McIntosh came to see Mr Grayson, bringing some firewood.   He also had with him the carbon copy of the will that Mr Grayson’s firm had previously sent out for Mr McIntosh’s approval and the two men discussed the draft will.

[9]      Clause  3  bequeathed  a  Mercedes  motor  vehicle  to  Rae  McIntosh’s  son, Raymond  Maurice  McIntosh.    There  was  a  joke  over  that  bequest  and  in  jest Mr Grayson wrote in after the name “Raymond Maurice McIntosh” the words “or Rick Grayson”.  Then, however, Mr McIntosh asked if he could sign the carbon copy of the will so as to save himself coming into Mr Grayson’s office the next week because he was busy.   He wanted to know if the carbon  copy would be legal. Mr Grayson told him it would be and Mr McIntosh insisted that it be executed then.

[10]     Mr Grayson deleted the words “or Rick Grayson” that he had added to clause

3.   Mr Grayson does not recall why the will was not dated but believes that was oversight on his part.  Mr Grayson and his wife then witnessed the will.  Although the signatures of the deponent and witnesses appear at the foot of that page there is no  signature  in  close  proximity  to  the  changes  that  Mr  Grayson  had  made  to clause 3.  I am, however, satisfied as to the explanation of this deletion.

[11]     Mr Grayson did not see the carbon copy will again until after Mr McIntosh had died and it was delivered to his office by Mr McIntosh’s brother with other personal papers.  By that time another deletion had been made to clause 3.  This was a line drawn through the words “Raymond Maurice McIntosh”.   There was no signature in proximity to that deletion either and nothing to indicate who had made the deletion, or when.   The likely explanation for this deletion is the fact that the motor vehicle that was the subject of clause 3 was disposed of long ago.  None of the persons affected by the will are concerned about clause 3.

[12]     I am satisfied that the handwriting was that of Ms Yeatts, the first deletion to clause 3 was made by Mr Grayson and the second deletion is of no significance.

[13]     Mr Grayson also referred to discussions that he had had with Mr McIntosh regarding  his  family.     The  will  reflected  Mr  McIntosh’s  wish  (expressed  to Mr Grayson) that his grandchildren inherit his estate.  Mr McIntosh had also made other comments about his sons and the reasons that only limited provision was made for  them.    I am  therefore  satisfied  that  the  carbon  copy of  the  will  signed  by Mr McIntosh   in   the   presence   of   Mr   Grayson   and   his   wife   did   represent Mr McIntosh’s testamentary intentions.

[14]     I make the following orders:

(a)       A declaration that the will is valid under s 14 of the Wills Act 2007. (b)        A grant of probate in solemn form.

(c)       That the applicant’s costs be paid from the deceased’s estate.

P Courtney J