McKay v Society of St Vincent De Paul New Zealand

[2022] NZHC 846

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1973

[2022] NZHC 846

IN THE MATTER

of s 14 of the Wills Act 2007

IN THE MATTER

of the estate of Daniel Joseph Eville

BETWEEN

COLIN CHARLES MCKAY

Applicant

AND

SOCIETY OF ST VINCENT DE PAUL NEW ZEALAND, THE SALVATION ARMY, THE FRED HOLLOWS FOUNDATION NZ

Respondents

Hearing:

On the papers

Appearances:

P J Stevenson for Applicant

J G Hannan for The Fred Hollows Foundation (NZ)

Judgment:

28 April 2022

JUDGMENT OF LANG J

[on application for order under s 14 of the Wills Act 2007]

This judgment was delivered by me on 28 April 2022 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

MCKAY v ST VINCENT DE PAUL NEW ZEALAND [2022] NZHC 846 [28 April 2022]

[1]    Mr Daniel Joseph Eville died at Auckland in early May 2021. Prior to his death he had given instructions to his solicitors for the preparation of a new will. These were contained in a handwritten document that he signed and gave to his solicitors on 11 February 2020. Mr Eville’s solicitors subsequently sent a draft will reflecting those instructions to Mr Eville but he never signed it before he died.

[2]    The applicant, Mr Colin McKay, is a partner in the firm of solicitors from whom Mr Eville sought advice about the preparation of his will. In this proceeding Mr McKay seeks an order under s 14 of the Wills Act 2007 declaring the handwritten document to be a valid will.

[3]    Mr McKay also seeks an order that he be permitted to have immediate recourse to the sum of $5,000 from Mr Eville’s estate so that he may pay outstanding insurance premia that relate to four residential properties owned by Mr Eville’s estate.

Background

[4]    In May 2019 Mr Eville consulted the law firm Wilson McKay with a view to signing a new will. He met with a solicitor from that firm, Ms Christina Wilson, on  7 May 2019. She deposes that she provided Mr Eville with the information he would need to provide in order to make a new will. At that point Mr Eville confirmed he wished the law firm to be the executor of his will and that his wife, Nyria, should be the beneficiary of his estate. Mr and Mrs Eville did not have any children. Ms Wilson therefore suggested to Mr Eville that he should include a substituted beneficiary in case his wife died before he did. Mr Eville said he would think about this and get back to Ms Wilson with his instructions.

[5]    On 6 June 2019 Mr Eville telephoned Ms Wilson and instructed her that if his wife died before him, his estate was to be left in equal shares to the Salvation Army and the Society of St Vincent De Paul. Ms Wilson then prepared a draft will in accordance with these instructions and forwarded this to Mr Eville.

[6]    Mr Eville’s wife subsequently died on 24 June 2019. Ms Wilson then advised Mr Eville that he needed to update his will to reflect this fact. Mr Eville met with Ms

Wilson again on 11 February 2020. During that meeting he provided Ms Wilson with a handwritten document headed “Will”. This provided as follows:

11.2.2020

Will Daniel Joseph Eville DOB 3 January 1938 Proceeds to be left as follows

Salvation Army

St Vincent De Paul

The Fred Hollows Foundation NZ

To be Buried at Mangere Law Cemetery (Nyria Eville) Grave

o  Head Stone added

Wilson McKay Authorised to Act on my behalf

Funral Funeral Costs and their Costs when I am died

To be Appointed Power of Attorney re Health

To be Appointed Power of Attorney re Capital

CATHOLIC Funeral

D J Eville 11.2.2020

[7]    Ms Wilson then used the information contained in the handwritten letter to prepare a further draft will that she sent to Mr Eville on 13 February 2020. Mr Eville did not sign that document despite Ms Wilson sending a reminder letter to him on 27 February 2020.

[8]    After Mr Eville died in May 2021 Wilson McKay made enquiries to determine whether Mr Eville had made another will after consulting with Ms Wilson. These enquiries have not produced any other will. On this basis Mr McKay contends that the Court should validate the handwritten document because it represents Mr Eville’s last known testamentary intentions.

Procedural issues

[9]    In a Minute issued on 19 October 2021 Wylie J directed that the proceeding be served on the three entities named in the handwritten document dated 11 February 2020. This duly occurred and the Fred Hollows Foundation subsequently filed an appearance reserving rights. Neither of the other parties served has taken any steps to oppose or support the present application.

[10]   The applicant’s advisers did, however, receive a communication from solicitors acting for Mr Eville’s five first cousins. It initially appeared that they may wish to challenge the application. On 14 December 2021, however, the cousins’ solicitor advised the applicant’s counsel that his clients did not want to oppose the application. The application therefore remains unopposed.

The law

[11]Section 14 of the Wills Act provides as follows:

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.

[12]   The principles to be applied in the present context are now well established. In short, the onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary

intentions of the deceased.1 The Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.2

[13]   In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that “a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.3

Decision

[14]   The handwritten document that Mr Eville gave to Ms Wilson on 11 February 2020 does not comply with s 11(4) of the Act because Mr Eville did not sign it in the presence of two witnesses who then endorsed their own signatures on the document in his presence. However, it plainly contains Mr Eville’s instructions for the will that he instructed Wilson McKay to prepare on his behalf. This is evident from the sequence of events Ms Wilson describes and from the fact that the document is headed “Will”. The balance of the information contained in the document is also consistent with that which would ordinarily be included in a will.

[15]   I am therefore satisfied that the handwritten document Mr Eville provided to Ms Wilson on 11 February 2020 set out his last known testamentary intentions. No other document or evidence has been found to suggest that he may have changed his mind subsequently and decided to alter the instructions contained in that document.

[16]   I therefore make an order under s 14 of the Act declaring the handwritten document dated 11 February 2020 to be a valid will.

[17]   It is also important that Mr McKay have access to funds to enable outstanding insurance premia to be paid. This is necessary to preserve the assets of the estate. I therefore make an order under r 7.55 of the High Court Rules 2016 that the sum of

1      Kirner v Falloon [2015] NZHC 1873, at [20].

2      Re Campbell (deceased) [2014] 3 NZLR 706, at [15].

3 Re Estate of Wong [2014] NZHC 2554, at 24].

$5,000 be released to Mr Mckay from BNZ bank account number [redacted] on the basis that he is only to use those funds for that purpose.

Lang J