Nicholls v Nicholls

[2024] NZHC 1038

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-171

[2024] NZHC 1038

UNDER

the Administration Act 1908 and the Wills Act 2007

IN THE MATTER

of the Estate of Rodney John Frederick Claxton

BETWEEN

GENEVIEVE NICHOLLS

Plaintiff

AND

GENEVIEVE NICHOLLS as Administrator in the ESTATE OF RODNEY JOHN

FREDERICK CLAXTON
Defendant

AND

ESTATE REESE MARTIN CLAXTON (Deceased) C/- TODD WHITEHOUSE, LAWYERS, LEVIN

First Interested Party

VANESSA JANE CLAXTON C/- REJTHAR STUART, LAWYERS, TAURANGA

Second Interested Party

Hearing:	On the papers
Counsel:	J A Dean for Plaintiff
Judgment:	1 May 2024

JUDGMENT OF McHERRON J

[1]    Genevieve Nicholls is the widow of the late Rodney Claxton, who died on    7 November 2019. Ms Nicholls obtained a grant of administration on intestacy for Mr Claxton’s estate on 4 November 2021. However, recently Ms Nicholls has

NICHOLLS v NICHOLLS [2024] NZHC 1038 [1 May 2024]

discovered documents expressing Mr Claxton’s testamentary intentions, and a draft will. Ms Nicholls applies for orders:

(a)that these documents be declared a valid will;

(b)recalling the grant of administration on intestacy; and

(c)granting probate of the document declared a valid will.

Background

[2]    Ms Nicholls and Mr Claxton met in 1995. Each of them had been married twice before. Mr Claxton had two biological children, Reece Claxton (who died in 2020) and Vanessa Claxton, and two step-children, David Henry and Melissa Taylor. In addition, Ms Nicholls has a son, Jarlath Carman.

[3]    In her affidavit, Ms Nicholls deposes that she and Mr Claxton had discussed what would happen to their property if one or both of them died. If both of them died, they had agreed that any wealth would be shared between their five children. If one of them died, then all property would pass to the surviving partner.

[4] In addition, reflecting an understanding between Mr Claxton and Ms Nicholls which had been communicated to various individuals before his death, a settlement agreement has been reached, and a Deed of Settlement has been entered into, as described further below at [17].

[5]    In June 2019, five months before he died, Mr Claxton completed a written questionnaire supplied by The Law Shop Ltd, a Rotorua law firm. Mr Claxton had made inquiries there in April 2019 about preparing a new will and was given the questionnaire to complete. The questionnaire states it is “a starting point for us to draft your will”. Annexed to Ms Nicholls’ affidavit is a copy of the questionnaire that has been completed in handwriting, signed and dated 7 June 2019. Ms Nicholls deposes that she recognises the handwriting and signature as Mr Claxton’s. After completing the questionnaire, Mr Claxton sent it back to The Law Shop.

[6]    Mr Claxton’s handwritten answers on the questionnaire indicate that he wished:

(a)to appoint Ms Nicholls as his executor;

(b)to make gifts of specific chattels to Reece Claxton and David Henry;

(c)to  leave  his  personal  chattels  and  the  residue  of  his  estate  to  Ms Nicholls.

[7]    Shortly after Mr Claxton completed and returned the questionnaire, he and Ms Nicholls left New Zealand to spend a month in Western Australia.

[8]    On 9 July 2019, Jo Douglas, a solicitor at The Law Shop, sent Mr Claxton a letter of advice and a draft will that was based on Mr Claxton’s responses to the questionnaire, for him  to  check and sign.   The letter of advice pointed out  that    Mr Claxton’s instructions did not specify who would benefit if Ms Nicholls predeceased him. The draft will provided that the estate would go to Mr Claxton’s children if Ms Nicholls predeceased him. However, in the letter of advice, Jo Douglas asked Mr Claxton that “[i]f that needs to change let me know.” The Law Shop also sent Mr Claxton a draft statement setting out the reasons for making the provisions he had in his will and acknowledging the potential risks of claims against the estate.

[9]The draft will also:

(a)appoints Ms Nicholls as Mr Claxton’s executor and trustee.

(b)makes gifts to Mr Claxton’s biological son and step-son.

(c)gives his personal chattels to Ms Nicholls and provides for the residue of the estate to go to Ms Nicholls.

[10]   However, Mr Claxton never signed the draft will, completed the statement, or gave  any  further  instructions.  Mr Claxton’s  health  deteriorated  and  he  died  on 7 November 2019.

[11]   A different law firm, Sandford & Partners, conducted a search for a will in 2021 through the usual Law Society channels, but no will was found. Believing there was no valid will, Ms Nicholls obtained a grant of administration for Mr Claxton’s intestacy on 4 November 2021.

[12]   The Law  Shop  has  since  destroyed  the  original  documents  signed  by  Mr Claxton and now only holds scanned copies made by the firm at the time.

[13]   Ms Nicholls now seeks an order that the completed questionnaire (described in Ms Nicholls’ Court documents as “the Wills Booklet”) and the draft will sent to Mr Claxton on 9 July 2019 be together declared a valid will under s 14 of the Wills Act 2007.

Proceeding and settlement deed

[14]   On 30 March 2023, Ms Nicholls filed a statement of claim and several affidavits to support the orders she is seeking in this proceeding. These Court documents were served on 21 April 2023 on the estate of Reece Claxton and on Vanessa Claxton.

[15]   No formal response to the claim has been received from either of those interested parties. However, a Deed of Settlement dated 5 April 2024 has been entered into between Ms Nicholls and each of the interested parties.

[16]Under the Deed of Settlement, the parties have agreed that:

(a)the completed questionnaire/Wills Booklet signed by Mr Claxton on  7 June 2019, together with the draft will sent to him on 9 July 2019 be declared a valid will;

(b)the grant of administration on intestacy in Mr Claxton’s estate granted to Ms Nicholls on 4 November 2021, may be recalled; and

(c)probate be granted of the Wills Booklet and draft will to Ms Nicholls.

[17]   Under the Deed the interested parties agree not to challenge the validity of these documents if validated or pursue any claims against Mr Claxton’s estate. It is also agreed under the Deed that Ms Nicholls will:

(a)pay $30,000 to Vanessa Claxton; and

(b)make provision in her will so that each of the following will receive

$50,000 from her estate following her death:

(i)David Henry;

(ii)Reece Claxton’s estate (with equal payments to each of his sons, Darren Bowden and Thomas Speirs);

(iii)Melissa Taylor; and

(iv)Jarlath Carman.

Analysis

[18]   The draft will prepared by The Law Shop on the basis of Mr Claxton’s instructions given in the questionnaire appears to be a will but it does not comply with s 11(2) of the Wills Act because it is not signed and witnessed in accordance with subs (3) and (4).

[19]   Nor is there any evidence that Mr Claxton had reviewed the draft will or accepted that its contents accurately reflected his instructions.

[20]   Moreover, as noted above, the draft will supplements Mr Claxton’s instructions, by including provision for the estate to go to Mr Claxton’s children if Ms Nicholls predeceased him. As that did not eventuate, this difference between the questionnaire responses/Wills Booklet and the draft will is not material to the outcome.

[21]   Section 14 of the Wills Act provides that the High Court may make an order declaring a document that appears to be a will valid if it is satisfied that the document expresses the deceased person’s testamentary intentions.1

[22]The Court may consider:2

(a)the document;

(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.

[23]   Based on the material submitted on behalf of Ms Nicholls, I am satisfied that the handwritten answers in his questionnaire response to The Law Shop and the unsigned draft will express Mr Claxton’s testamentary intentions. A clear and consistent thread in the affidavits is evidence of discussions, and a common understanding between, Mr Claxton and Ms Nicholls that, upon the death of one of them, the other would take the whole estate, but that their children would be provided for after they both died. The arrangement in Mr Claxton’s will instructions excluded Mr Carman, Ms Nicholls’ son. But there is evidence that he and Mr Claxton discussed this and that it was acceptable to Mr Carman because, in his words, “I would have mum”.

[24]   Ms Nicholls seeks an order that both the completed questionnaire/Wills Booklet and the draft will be together declared a will under s 14. However, only the draft will itself “appears to be a will” in terms of s 14(1)(a). It is therefore unnecessary and inappropriate to declare the questionnaire responses/Wills Booklet to be a valid will. Mr Claxton’s questionnaire answers support the draft will except in respect of the primary difference identified above at [8] and [20] regarding provision for the children if Ms Nicholls predeceased him. However, the affidavit evidence filed in

1      Wills Act 2007, s 14(2).

2      Section 14(3).

support of the orders is consistent with this as reflecting Mr Claxton’s testamentary intentions.

Result

Will declared valid

[25]   Accordingly, I declare under s 14 of the Wills Act that the scanned copy of the draft will annexed to Ms Nicholls’ affidavit and marked “F3” to “F5” (inclusive) is the valid will of Rodney Claxton, the original of that document having been destroyed.

Consequential order recalling grant of administration for intestacy

[26]   As a consequence of my order declaring the draft will valid, I make an order under rr 27.34(2)(b)(i) and (iii) of the High Court Rules 2016 recalling the grant of administration for intestacy. These rules provide that the Court may make an order for recall of the grant if:

(a)the application is unopposed; and either

(b)the grant was made on the basis that the deceased died intestate and a will has been found; or

(c)the person to whom the grant was made applies for the recall.

[27]   I interpret the words “a will has been found” in r 27.34(2)(b)(i) to include a situation such as in the present case, where a will has been validated under s 14 of the Wills Act.   Even if I am wrong to do so, r 27.34(2)(b)(iii) applies because it is      Ms Nicholls, to whom the grant was made, who applies for the recall. In these circumstances, r 27.34 envisages an interlocutory application for an order for recall. That process has not been followed in the present case where a proceeding has been filed. But I do not understand there to be any reason for now requiring an interlocutory application.

Probate to be applied for in the ordinary way

[28]   Finally, although Ms Nicholls seeks a consequential order granting probate of the document declared a valid will, it is appropriate that she now make an application without notice under r 27.4, which will allow the Court’s usual probate process to be followed. However, as Court fees have already been paid in respect of the present proceeding, I waive any application fee for a probate application to be made as a consequence of these orders.

McHerron J

Solicitors:
John Dean Law Office, Wellington for Plaintiff