Naidu v Agnew

[2012] NZHC 2134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001775 [2012] NZHC 2134

BETWEEN  VINCENT NAIDU OF AUCKLAND, SOLICITOR, AND GRAEME ANDREW MULHOLLAND OF AUCKLAND, COMPANY DIRECTOR (SUING IN THEIR CAPACITIES AS THE EXECUTORS OF THE DECEASED'S ESTATE)

Plaintiffs

AND  ALLAN ROBERT AGNEW OF 104

PORRITT AVENUE, CHATSWOOD, AUCKLAND, COMPUTER ANALYST First Defendant

AND  OLWYN ELIZABETH GRIFFIN OF 24

SAILMAKER DRIVE, WHITBY, WELLINGTON, INSURANCE AND FINANCE BROKER

Second Defendant

AND  ROBERT WILLIAM AGNEW OF 104

PORRITT AVENUE, CHATSWOOD, AUCKLAND, STUDENT

Third Defendant

ANDGRAEME ANDREW MULHOLLAND OF 567 HILLSBOROUGH ROAD, MT ROSKILL, AUCKLAND, COMPANY DIRECTOR (SUED IN HIS CAPACITY AS A BENEFICIARY IN THE DECEASED'S ESTATE)

Fourth Defendant

ANDMARJORIE ALISON MULHOLLAND OF 567 HILLSBOROUGH ROAD, MT ROSKILL, AUCKLAND, HOMEMAKER Fifth Defendant

NAIDU v AGNEW HC AK CIV-2012-404-001775 [22 August 2012]

Hearing:         22 August 2012

Appearances: I Williams for the Plaintiffs

K A Muir for First, Second and Third Defendants
R Partridge for Fourth and Fifth Defendants

Judgment:      22 August 2012

ORAL JUDGMENT OF GILBERT J

Counsel: I Williams, Auckland:  [email protected]

K A Muir, Auckland:  [email protected]
R Partridge, Auckland:  [email protected]

[1]      Margaret Muriel Agnew died on 13 January 2012.  Her last valid Will was dated  29  October  2004.  However,  she  signed  two  later  documents,  one  on

4 November 2008 and the other on 15 September 2011.  The latter document was an instruction sheet for her solicitors to prepare a new Will.   This Will was never completed because medical evidence indicated that Ms Agnew lacked testamentary capacity at the time.  The executors have brought the present application seeking a direction as to the validity of the two later documents and for a grant of probate in solemn form as appropriate.

[2]      All parties who could potentially be affected have now been served.  The first to fifth defendants consent to the orders sought by the plaintiffs. The ninth defendant has filed an appearance but has taken no other steps.   The other defendants have taken no steps. The proposed orders are as follows:

(a)       An order validating the document dated 4 November 2008 as a Will.

(b)      An order granting probate in solemn form of the document dated

4 November 2008 as a Will;

(c)       an order directing the appointment of Mr Vincent Naidu as executor and administrator of the Will; and

(d)an  order  directing  that  the  plaintiffs’ costs  are  to  be  paid  on  an indemnity basis as a first charge against the deceased’s estate.

[3]      I  am  satisfied  that  these  orders  are  appropriate  and  orders  are  made accordingly.   The orders are made by consent but I nevertheless summarise my reasons for making these orders.

[4]      It seems clear that Ms Agnew intended to modify her existing Will by making the  specific  bequests  detailed  in  the  document  she  prepared  and  signed  on

4 November 2008.  This list records “the following is a list of specific gifts I wish to be made from my estate upon my death”.  Ms Agnew signed and dated the document in front of a witness who added her name and address.  This document did not meet

the requirements for a valid Will under s 11 of the Wills Act 2007 because it was not witnessed in the prescribed manner.  However, I am satisfied that this document does express Ms Agnew’s testamentary intentions having regard to the formality with which it was prepared and signed. Accordingly, I consider that it should be validated pursuant to s 14(2) of the Act.  In making this order I do not overlook the fact that in respect of three categories of beneficiaries a direction has been given permitting increased payments to a maximum sum.   I do not consider that this renders the direction uncertain nor do I consider that it detracts from my conclusion that the document represented Ms Agnew’s testamentary intentions.

[5]      I do not consider that the subsequent document dated 15 September 2011 should be validated under s 14. Although this document was signed by Ms Agnew, it was not witnessed.  Further, it takes the form of an instruction to her solicitors for the preparation of a Will.  On that basis it is fair to assume that Ms Agnew anticipated that  her  testamentary  intentions  would  be  refined  and  confirmed  following discussion with her solicitors and that a new Will would be prepared setting out her new testamentary intentions.   This  conclusion  is  supported  by the  fact  that  the document indicates that the trustees should have a discretion to increase or decrease gifts under the Will but not to delete beneficiaries altogether.   It also refers to the trustees having a discretion in respect of any residual property.  This indicates to me that Ms Agnew had not made any final decision about the overall distribution of her estate.  I also take into account that these instructions were not acted upon by her solicitors because of concerns, based on medical evidence, that Ms Agnew lacked testamentary capacity at the time this document was prepared.

[6]      I  record  my  thanks  to  counsel  for  their  helpful  submissions  and  the constructive way in which this matter has been dealt with.

M A Gilbert J