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  [email protected]

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 document came to be prepared, reasons as to why it was not correctly signed or, where relevant, why the document was never signed or witnessed at all.

1      Re Zhou (dec’d) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

2      Wills Act 2007, s 14(3).

[10]In Re Campbell, Mackenzie J noted that:3

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

[11]   In Re Cornelius, the Court recognised that despite a reasonably extensive delay (in that case three years) between preparation of a draft and death of the will-maker the draft may, in appropriate cases, still accurately reflect the deceased’s testamentary intentions.4

Discussion

[12]   The document for which validation is being sought is in formal terms, prepared by solicitors in draft, but signed by the testator in the presence of one of the employees of the Care Home where she was resident. The document is headed, “The Last Will and Testament of me Barbara Vera Chandler of Hamilton, Retired”. It appoints executors and trustees and purports to dispose of property owned by Mrs Chandler. Self-evidently it appears to be a will, albeit watermarked “draft”.

[13]In terms of other jurisdictional requirements in s 14 of the Act I note:

(a)the document was prepared by New Zealand based lawyer, Ms Karen Brown of Clark & Brown Lawyers, Hamilton;5 and

(b)it does not comply with s 11 of the Act because, although signed by Mrs Chandler, her signature was witnessed by one person only, rather than the required two.6

3      Re Campbell (dec’d) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

4      Re Cornelius HC Auckland CIV-2012-404-341, 28 March 2012 at [11] and [20].

5      Wills Act 2007, s 14(1)(c).

6      Wills Act 2007, ss 14(1)(b) and 11(4).

[14]   The critical jurisdictional question is, therefore, whether the document expresses Mrs Chandler’s testamentary intentions. I am satisfied that it does. Relevant to that conclusion are the following:

(a)On 6 August 2019 Mrs Chandler’s daughter, Sandra, who had been recognised in the 2011 Will, died. On 19 August 2019, Mrs Chandler prepared a handwritten note recording her wish to alter her Will to recognise this fact. The letter was signed and witnessed by her Care Home’s manager.

(b)Her solicitor, Ms Brown, was provided with instructions by way of email to draft a new Will for Mrs Chandler on 26 August 2019.

(c)A first draft was prepared and forwarded to Mrs Chandler who made various    amendments,    with    a    final     draft     produced     on   11 September 2019. This was left with Mrs Chandler at the Care Home for her further consideration.

(d)On 16 September 2019, in the presence of a Care Home staff member, Mrs Chandler signed the draft Will. The staff member has provided an affidavit confirming his involvement.

(e)The day before her death Mrs Chandler had  an appointment with    Ms Brown to execute her new will formally. Unfortunately, however, she was too unwell to attend the appointment and died the next day.

[15]   I am satisfied that were it not for her untimely death Mrs Chandler would have executed a formal will in terms identical to the draft, and that the draft fully expresses her testamentary intentions.

[16]   In coming to this conclusion I note also that the majority of the parties affected by the application have either filed a statement of consent in respect of the proposed orders or have signified their consent by email. The only parties not to have consented are those who have requested they no longer be contacted regarding the proceeding.

Result

[17]   I make orders declaring that the document annexed and marked “H” to the affidavit of Ms Ruth Barbara Moore, sworn 14 August 2020, is the last will of Barbara Vera Chandler of Hamilton, Retired.

[18]No issue as to costs arises.

Muir J