NZ Federation of Young Farmers Clubs Incorporated v Pearson

[2017] NZHC 213

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2016-404-3065

[2017] NZHC 213

IN THE MATTER OF

an application under s 14 of the Wills Act 2007

AND

the Estate of DONALD FLETCHER PEARSON

BETWEEN

THE NZ FEDERATION OF YOUNG FARMERS CLUBS INCORPORATED

Applicant

AND

ALAN EDWIN PEARSON AS EXECUTOR OF THE ESTATE OF DONALD FLETCHER PEARSON

Respondent

Hearing:	15 February 2017
Appearances:	S Nicholson as agent for D Lester for Applicant
Judgment:	21 February 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 21 February 2017 at 2 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors/Counsel:

Dale Lester, Barrister, Christchurch Layburn Hodgins, Christchurch Fortune Manning, Auckland

Copy to:

Lowndes Jordan, Auckland

THE NZ FEDERATION OF YOUNG FARMERS CLUBS INC v PEARSON [2017] NZHC 213 [21 February 2017]

Mr Donald Pearson’s testamentary intentions

[1]    Mr Donald Fletcher Pearson lived alone on his dairy farm of 183 acres at Ara-Kotinga, Brookby, Manurewa. He married but the marriage did not last. He had no children. His last signed will, dated 11 October 1977, left his entire estate to his brother Mr Alan Pearson.

[2]    Mr Donald Pearson wanted his farm to remain a working farm. In June 2012 he initiated discussion with his solicitors about how to effect that and re-engaged in the matter in 2016. In February 2016 he, and his long-time friend  Mr  Bryan Cartelle, met with representatives of the NZ Federation of Young Farmers Clubs Inc (Young Farmers). He decided to gift the farm to a charitable trust formed by himself and Young Farmers. Mr Pearson would retain ownership of the stock and machinery which would be leased back to the Trust, providing Mr Pearson with an income. He would also have a licence to occupy the property for his lifetime.  The balance of   Mr Pearson’s assets would be left to the Trust. A draft Trust Deed was prepared by the Young Farmers’ solicitors on 1 August 2016 and commented on by Mr Pearson’s solicitors.

[3]    However Mr Pearson had a heart attack on 27 September 2016. As a stop- gap measure a new will was prepared by his solicitors. Mr Cartelle presented, and explained, the draft will to Mr Pearson on the afternoon of Thursday 29 September 2016. Mr Cartelle has provided an affidavit explaining the process he went through. In the draft will, Mr Cartelle was to receive all personal chattels and the balance of the estate was left to the Young Farmers for the purposes of providing educational opportunities for the ongoing promotion and advancement of farming in New Zealand.

[4]    Mr Cartelle’s evidence is that he questioned the solicitors about the chattels being left to him but the solicitors explained he could distribute them as appropriate. The only change made to the will after discussion with Mr Pearson was in respect of Mr Pearson’s wishes regarding burial.

[5]    Mr Pearson had further strokes and was not able to sign the revised draft Will before his death on 6 October 2016.

[6]Mr Cartelle initiated a meeting between Mr Pearson’s solicitors and his

brother Mr Alan Pearson about the last signed will and the revised draft will.

Application to validate the draft Will

[7]    Young Farmers now apply to the Court to validate the revised draft will under s 14 of the Wills Act 2007. They sought directions to serve Mr Alan Pearson, which was granted by Woodhouse J on 6 December 2016. Mr Alan Pearson accepted service on 7 December 2016 and, on 31 January 2017, advised the Court he does not oppose the application.

[8]Section 14 provides:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will [which is defined in s 8]; 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.

[9]    The revised draft will satisfies the requirements of s 14(1). I am satisfied on the evidence before me that the revised draft will expresses Mr Donald Pearson’s testamentary intentions.

Result

[10]   I make an order declaring the revised draft will valid, as sought. No order as to costs is sought or made. Probate may be sought, on the basis of this judgment, in the usual way.

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Palmer J