Moore - [2020] NZHC 2977

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000229

[2020] NZHC 2977

UNDER Section 14 of the Wills Act 2007

IN THE MATTER

of RUTH BARBARA MOORE AND

BRUCE IAN HUMBLE, Executors for an order validating a document as a will

Hearing: On the papers

Counsel:

S Ambler for the Executors

Judgment:

2 December 2020

JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 2 December 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
Tompkins Wake, Hamilton stephanie.ambler@tompkinswake.co.nz

Re Moore and Humble Application [2020] NZHC 2977 [2 December 2020]

Introduction

[1] Ruth Barbara Moore and Bruce Ian Humble, who are the executors and trustees of the late Mrs Barbara Vera Chandler (both in terms of her will dated 16 March 2011 and draft will signed 16 September 2019), seek orders validating the latter document as her operative will. Although the September 2019 document (marked ‘Draft’), was signed in the presence of a witness no final document was produced or executed before Mrs Chandler unexpectedly died on 25 September 2019.

[2] No notices of opposition have been filed in respect of the application. I am satisfied that all parties with a valid interest in the proceedings have been properly notified.

[3] The applicants now seek orders on the papers validating the signed draft document as Mrs Chandler’s Last Will and Testament.

The relevant legal principles

[4] Under s 14 of the Wills Act 2007 (the Act) the High Court may declare a document to be a will if the following conditions are satisfied:

(a)it appears to be a will;

(b)the document in question:

(i)does not comply with s 11 of the Act;

(ii)came into existence in or out of New Zealand;

(c)the Court is satisfied that the document expresses the deceased person’s testamentary intentions.

[5]Pursuant to s 11 of the Act, for a will to be valid it must be:

(a)in writing;

(b)signed and witnessed;

(c)signed by the will-maker or by someone appointed on their behalf in the presence; and

(d)signed with two witnesses present who then sign the document in the presence of the will-maker.

[6] These formal requirements have not been satisfied in respect of the September 2019 document.

[7] Before validating an informal document the Court must evaluate the relevant circumstances and reach a conclusion based on cogent evidence that the document expresses the deceased person’s testamentary intentions.1 The Court must focus on the will-maker’s intentions rather than the formal steps necessary to implement the same.

[8]In undertaking its evaluation the Court may consider the following:2

(a)the document;

(b)evidence relating to any signing or witnessing of it;

(c)evidence of the deceased person’s testamentary intentions; and

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

[9] These factors are non-exhaustive and the Court may consider any further evidence which assists it in determining whether the document expresses the testamentary intentions of the deceased. Such evidence may include how the…

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 Moore

Details

AGLC: Moore [2020] NZHC 2977
Case: [2020] NZHC 2977
Decision Date: 2 December 2020

CaseChat Overview and Summary

The applicants, Ruth Barbara Moore and Bruce Ian Humble, executors and trustees of the late Mrs Barbara Vera Chandler's will, sought orders validating a draft will as her last testament. The draft, signed on 16 September 2019 but only witnessed by one person, was executed before Mrs Chandler's unexpected death on 25 September 2019. The applicants argued that the draft expressed Mrs Chandler's testamentary intentions, and sought orders to validate it as her last will. The court considered whether the draft met the statutory requirements of the Wills Act 2007 and if it expressed Mrs Chandler's testamentary intentions. The draft did not comply with the formal requirements of a will under section 11 of the Act because it was not signed in the presence of two witnesses. The court evaluated the circumstances and concluded that the draft did express Mrs Chandler's testamentary intentions based on evidence, including her communication of her wishes to update her will after her daughter's death, the process of drafting the new will, and her signing of the draft in the presence of a witness. The court granted the application, validating the draft will as Mrs Chandler's last testament.

Orders