O'Neill v Slieker

[2022] NZHC 358

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-109

[2022] NZHC 358

UNDER

the Wills Act 2007

IN THE MATTER OF

the Estate of ANNE NEWMAN SLIEKER

BETWEEN

JOSEPH GERARD O’NEILL AND PAUL STAFFORD O’NEILL

Applicants

AND

VERITY BABETTE SLIEKER AND HANNAH SLIEKER BERGE

Respondents

Hearing:

2 February 2022

Appearances:

J Stringer for Applicants

No appearance by or for Respondents

Judgment:

4 March 2022

JUDGMENT OF MANDER J

[1]    Ms Anne Slieker (Ms Slieker) died on 15 February 2019. She had one daughter, Verity Slieker (Verity), and one granddaughter, being the child of Verity, Hannah Berge (Hannah), to whom Ms Slieker sought to leave her relatively modest residuary estate.1 All three women resided in Queensland, Australia.

[2]    Joseph and Paul O’Neill (the solicitors), are members of a law firm based in Dunedin that has acted for Ms Slieker since at least 1980. Both solicitors were appointed as the executors and trustees of Ms Slieker’s estate in successive wills that Ms Slieker has made over the years, the last of which she purported to execute on

1      As at 21 April 2021 the current net assets of the estate are valued to be $99,910.79.

O’NEILL v SLIEKER [2022] NZHC 358 [4 March 2022]

8 July 2015. Difficulties have emerged regarding that document which has resulted in the solicitors applying to have the 2015 document validated under s 14 of the Wills Act 2007 (the Act).

Background

[3]    Ms Slieker made a will in 2009 which dispersed her residuary estate in the following way:

(c)1.        80% to my daughter Verity Babette Slieker.

2.15% to Aid for the Blind (QLD) Inc, 9/10 Cameron Street (PO Box 6152), Fairfield, Queensland 4103, Australia.

3.5% to my daughter Hannah Slieker Berge.

[4]    In May 2015, Ms Slieker prepared a homemade will that changed the disposition of her estate:

After my death any financial assets remaining in my two (2) Westpac Australia and three (3) Westpac New Zealand Bank accounts when all debts, dues and fees have been settled, I wish to be divided between Verity B. Sleiker and Hannah S. Berge.

Sixty (60) per cent to Verity B. Slieker of 6/20 Wickham Street, Newmarket 4051 as at the date of this document and Forty (40) per cent to Hannah S. Berge, who’s address can be provided by her father Mr D. Berge via email

danny.berge@gmail,com when requested by the firm of O’Neill and Devereux.

[5]    Ms Slieker forwarded what she described in an accompanying letter as “the very latest edition of my ‘Will and Testament’” to her solicitors and requested they confirm receipt of the document.

[6]    When the solicitors received this homemade will they noted a number of problems with the document. It did not name an executor and had been incorrectly witnessed. They wrote back to Ms Slieker pointing out these deficiencies and requesting she contact them to discuss completing a will that would meet her needs and satisfy the necessary legal requirements. A fresh will was prepared that reflected the same division of the estate between Verity and Hannah as set out in the homemade will. This was then sent to Ms Slieker together with signing instructions. Unfortunately, these instructions were not followed.

[7]    This non-compliance did not become apparent until an application for probate was filed in this Court which necessitated the making of further inquiries.2 The solicitors received a minute from a senior deputy registrar based in Auckland that advised, because the attestation at the end of the will only indicated the testator “understood” but not that she “thoroughly understood” the will, a doubt was said to arise as to whether Ms Slieker thoroughly understood the document and/or had full knowledge of its content, as required by r 27.18(1)(b) of the High Court Rules 2016. Upon receiving this communication, the solicitors approached the two witnesses to the 2015 will, Hilda Howearth (Ms Howearth) and Elizabeth Haygarth (Ms Haygarth).

[8]    Ms Haygarth replied to the solicitors’ inquiry by confirming she was the person who prepared the original correspondence for Ms Slieker in relation to her homemade will and the 2015 will. It should be noted at this point that Ms Slieker was blind and, at the time of her death, was living in a home for the visually impaired. The solicitors were aware of Ms Slieker’s condition and their instructions regarding the execution of the will specifically provided for her impairment. In particular, it was noted that the will should be read to Ms Slieker in the presence of the two witnesses and that they should certify, when signing as witnesses, that the will had been read to her and that she understood it before signing it.

[9]    Ms Haygarth advised that she had read all correspondence received from the solicitors to Ms Slieker in respect of her 2015 will arrangements. She confirmed she knew Ms Slieker very well, as she was her carer, and would visit her weekly for a “few hours”. However, Ms Haygarth advised she was not present when the other witness, Ms Howearth signed the document. Ms Slieker obtained Ms Howearth’s signature at some later point. Ms Haygarth was adamant as to Ms Slieker’s understanding and knowledge of the document’s content. She stated in an email to the solicitors that “there is absolutely no doubt that Anne was of sound mind and completely able to make her wishes known and have them recorded as such”.

2      Probate was applied for in New Zealand because the majority of Ms Slieker’s assets are located in a New Zealand bank. She also had funds in Australian bank accounts but the combined balance of those accounts does not exceed AUD$50,000 and falls below the threshold required for an application for estate administration in Australia.

[10]   Ms Howearth was contacted by the solicitors by telephone. She is a resident in the same complex  where  Ms Slieker  resided  and  is  also  visually  impaired.  Ms Howearth confirmed she knew Ms Slieker but, despite her signature and name being recorded on the 2015 will, she had no independent recollection of signing the document.

The application

[11]   The 2015 will does not meet the formal requirements for a valid will under s 11 of the Act but it is submitted that it does accurately record Ms Slieker’s testamentary instructions and her clear and unambiguous testamentary intentions. Notwithstanding the infelicities regarding the witnessing of Ms Slieker’s signature and the resulting failure to meet the formal requirements, it is submitted the document should be validated as Ms Slieker’s operative will at the time of her death.

[12]   In accordance with directions made by this Court, the three beneficiaries under the 2009 will (Verity, Hannah and Aid for the Blind (QLD) Inc) have been served with the application and supporting material. No opposition has been filed. Verity, who stands to be disadvantaged by the 2015 document being validated, has provided her written consent to an order being made to that effect and has advised that she has elected not to seek independent legal advice and is fully aware of the effects of the order being sought. The other affected entity, Aid for the Blind (QLD) Inc has taken no steps, nor has Hannah who stands to benefit from the revised terms of the 2015 will.

Decision

[13]   I am satisfied the requirements of s 14 of the Act have been made out. In particular:3

(a)the 2015 document expressing Ms Slieker’s testamentary intentions appears to be a will;

(b)it does not comply with s 11 of the Act; and

3      Wills Act 2007, s 14(1).

(c)it came into existence out of New Zealand.

[14]   Most importantly, I am satisfied the 2015 will expresses Ms Slieker’s testamentary intentions. But for the failure to have the document signed in the presence of two witnesses, it would otherwise constitute a valid will. It is not apparent that Ms Slieker’s visual impairment in any way affected her ability to understand the effect of the will, nor that she did not have full knowledge of its content. The variation from the terms of the 2009 will, as documented in the 2015 document, were initially sought to be recorded by Ms Slieker herself by making her own will. That change was confirmed after consultation with her solicitors and a will prepared by them which Ms Slieker signed with the assistance of Ms Haygarth. I do not consider there is any doubt that the 2015 will accurately reflects Ms Slieker’s intended division and disposition of her estate at the time of her death.

Order

[15]   There will be an order under s 14 of the Act validating the document signed by Ms Slieker on 8 July 2015 as her valid will.

Costs

[16]Costs on the application are directed to be paid by the estate.

Solicitors:
O’Neill Devereux, Dunedin