Nelson

[2021] NZHC 1431

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2021-418-15

[2021] NZHC 1431

UNDER	the Wills Act 2007
AND
IN THE MATTER	of an application by ROBERT BRUCE ROBINSON for an order that a document be declared a valid will of FIONA BRENDA NELSON

Appearances:	M M Bell for Applicant
Judgment:	16 June 2021
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 16 June 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re Nelson [2021] NZHC 1431 [16 June 2021]

Introduction

[1]                 The applicant, Robert Robinson, seeks an order pursuant to s 14 Wills Act 2007 (the Act) that a document (the document) be declared a valid will of his partner, Fiona Brenda Nelson, who died at Hokitika on 3 March 2020. He asks that this application be dealt with on the papers without service to any other party.

[2]                 This is an originating application, made without notice on the ground that all persons affected by the application have consented to it.

Background

[3]                 The document was drafted in the form of a will in April 2014 by Ms Nelson’s solicitors, Knapps Lawyers of Nelson. Both Ms Nelson and Mr Robinson had draft wills prepared at approximately the same time. These drafts were in the nature of mirror wills. Both documents left the whole of the estate to the partner and, in the event the partner did not survive the deceased, to their two children equally. Each appointed their partner as executor in the event the partner survived them.

[4]  Most of the information required for each will had been completed by Knapps. However, Knapps emailed Ms Nelson’s work address on 8 April 2014 requesting information as to Mr Robinson’s occupation, funeral arrangements and the identity of the executor of the will in the event that Mr Robinson did not survive Ms Nelson.

[5]                 Neither Ms Nelson or Mr Robinson responded to this email, nor did they complete or sign the draft wills. Mr Robinson deposes that this was simply because they “didn’t get around to it”. He deposes that nothing changed in terms of Ms Nelson’s (or his) intentions regarding their wills and they remained in a stable relationship.

[6]                 Ms Nelson’s  beneficiary  under  the  document  would  be  Mr  Robinson.  Mr Robinson and Ms Nelson had two children as named in the document, both of them are over the age of 20 years. Ms Nelson had no grandchildren.

[7]                 Ms Nelson had previously been married but that marriage had ended when Ms Nelson was in her early 20s. There were no children of that marriage.

[8]                 Ms Nelson did not have a signed will at the time of her death. Ms Crehan, Knapps’ managing partner, also filed an affidavit in which she confirms that Knapps do not hold any further emails or documents in relation to this matter.

[9]                 Therefore, the only other interested parties in this application under the intestacy rules are the children of Mr Robinson and Ms Nelson. Both children have consented to the application.

Law

[10]              This Court has power to declare a document a valid will, pursuant to s 14 of the Act. That section states:

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.

[11]              Here, the requirements of s 14(1) are met. The testamentary document appears to  be a  will, it  came into existence  in  New Zealand and it  does not  comply with  s 11(3)(a) of the Act as it was not signed by the will-maker.

[12]Section 11 of the Act provides:

11       Requirements for validity of wills

(1)A will must be in writing.

(2)        A will must be signed and witnessed as described in subsections (3) and (4).

(3)The will-maker must—

(a)sign the document; or

(b)direct another person to sign the document on his or her behalf in his or her presence.

(4)At least 2 witnesses must—

(a)        be together in the will-maker’s presence when the will- maker—

(i)complies with subsection (3); or

(ii)acknowledges that—

(A)he or she signed the document earlier and that the signature on the document is his or her own; or

(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)each sign the document in the will-maker’s presence.

(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a)that he or she was present with the other witnesses when the will-maker—

(i)signed the document; or

(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)that he or she signed the document in the will-maker’s presence.

(6)No particular form of words is required for the purposes of subsection (5).

Analysis

Without notice application

[13]              A preliminary question for consideration is whether the application may be dealt with on a without notice basis. Pursuant to r 7.46 of the High Court Rules 2016 I am satisfied the interests of justice allow the application to be determined without serving notice of the application. Both Ms Nelson’s children, being the only persons who might be affected by the making of the order sought, are aware of the application and have consented to it.

Invalidity of will

[14]              The document was unsigned by Ms Nelson. For this reason, I am satisfied that s 11(3) of the Act has not been complied with, thereby establishing jurisdiction to exercise the power under s 14 to declare the document a valid will. Mr Robinson deposes that Ms Nelson’s intention in relation to her will did not change and the only reason the document was not signed is because she did not “get around” to it.

[15]                This is not the first time that a will has been left unsigned simply due to its execution being overlooked. In the case of Re Estate of Hickford, this issue was addressed by MacKenzie J in terms that would generally not support validation in cases where execution of the will document was simply overlooked or forgotten about:1

[9]        The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:

(a)That he had changed his mind about making a will;

(b)That he overlooked or forgot about signing the will; or

(c)That he did not think that he needed to do anything further.

1      Re Estate of Hickford (deceased) HC Napier, CIV-2009-441-369, 13 August 2009.

[10]      I consider that, to meet the statutory test, the case must fall within the third possibility. Clearly, the first possibility would mean that the document did not express his testamentary intentions. In my view, the second possibility might not meet the statutory test. I consider that the third possibility would meet the test. If the deceased thought that he had made an effective will, and that the reason that the document was unsigned was a mistaken view that everything necessary had been done, the Court could be satisfied that the document did express the deceased’s testamentary intentions despite the lack of a signature.

[11]      I consider therefore that the question to be determined is whether I can be satisfied, on the balance of probabilities, that the third possibility is the correct one. As the Supreme Court has made clear in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, the balance of probabilities is a single standard, but as a matter of fact, Judges require stronger evidence of some allegations before the issue can be proved to their reasonable satisfaction. I consider that, because of the importance of a declaration that a will be declared valid, there must be cogent evidence that the document reflects the deceased’s testamentary intentions.

[16]              However, MacKenzie J was to later explain these observations. In Re Fraser, the will was unsigned, seemingly because the deceased did not get around to completing the process.2 Validation was found to be appropriate. MacKenzie J observed :

[7]        In Re Gladwin v Public Trust, Woolford J upheld a will in somewhat similar circumstances, although in that case the application was opposed. In doing so, Woolford J referred to an earlier judgment of mine in Re Estate of Hickford, where I had referred to three broad possibilities as to why no appointment to sign a will had been made by the deceased. These were:

(a)  That he had changed his mind about making a will;

(b)  That he overlooked or forgot about signing the will; or

(c)  That he did not think that he needed to do anything further.

[8]        In stating those possibilities, I did not make it sufficiently clear that I intended to confine my remarks to the circumstances of that case, I did not intend to suggest that those would be the only possibilities which might arise in any case. As Woolford J, in my view correctly, recognised, there are other possibilities. Each case must be considered on its own facts.

[9]        I am satisfied that the document prepared in accordance with the deceased’s instructions given on 27 April 2011 expressed the deceased’s testamentary intentions at the time it was drafted. I am satisfied that the lack of signature is not evidence of a change of mind on the part of the deceased. Accordingly, I am satisfied that, at the date of his death, the document expressed the deceased’s intentions.

2      Re Estate of Fraser HC Napier, CIV-2011-441-700, 20 December 2011.

[17]              As Re Fraser indicates and s 14(2) of the Act requires, the central inquiry here is whether the unsigned will document expresses the deceased’s testamentary intention in the circumstances of each case.

[18]              Mr Robinson’s evidence establishes that the document correctly represented Ms Nelson’s testamentary intention.

Orders

[19]I dispense with any service of the proceeding.

[20]              I declare that the document sent by Knapps Lawyers to Fiona Brenda Nelson as a draft will on 8 April 2014 is the valid will of Fiona Brenda Nelson.

Osborne J

Solicitors:
M M Bell, Corcoran French, Christchurch