Osborne - [2012] NZHC 1846

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2012-441-286 [2012] NZHC 1846

IN THE MATTER OF the Estate of Graeme Malcolm Osborne

AND

IN THE MATTER OF an application under s 14 of the Wills Act
2007

Counsel: D H McDonald

Judgment: 26 July 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4pm on the 26th day of July 2012.

JUDGMENT OF MACKENZIE J

[1] This is a without notice application for an order declaring that an unsigned document prepared by the deceased’s solicitor be declared valid under s 14 of the Wills Act 2007.

[2] Mr Osborne died at Hastings on 20 March 2012. He had been terminally ill with cancer for several months and spent a period in hospice care shortly before his death. He came home from the hospice on 14 March 2012. He had been discussing his affairs with his son Kyle over the previous few days. When he arrived home he asked to see his solicitor so that he could put his affairs in order. Kyle arranged for him to see Mr McDonald, from the firm McDonald Brummer, who had recently taken over on the retirement of the deceased’s previous solicitor. Mr McDonald, the deceased, and Kyle met at the deceased’s home on 14 March 2012 and discussed the deceased’s affairs. One of the matters which the deceased wanted to deal with as
urgently as possible was updating his will. His existing will had been made on

RE OSBORNE (DECEASED) HC NAP CIV-2012-441-286 [26 July 2012]

17 December 1987 and amended by a codicil dated 1 June 2001. The 1987 will left his entire estate to his then wife if she should survive him, and appointed her sole executrix. If she did not survive him, the will appointed the deceased’s sister Mrs Duffell and his brother-in-law Mr Hadwen as executors, and left his entire estate to his two children, Kyle and Kelly. The deceased separated from his then wife and the marriage was dissolved in 1999. By handwritten codicil dated 1 June 2001, he made two changes. He revoked the provisions in favour of his former wife, and he appointed his solicitor, Mr Hancock, as an executor in place of Mr Hadwen.

[3] The deceased entered into a de facto relationship in about 2001 with Julie James. They entered into a relationship property agreement dated 27 July 2004 under which the deceased agreed to make a will leaving Ms James his interest in their house property.

[4] On 14 March 2012 the deceased told Mr McDonald and Kyle that he wanted to make a new will whereby Mr McDonald and Kyle were appointed executors, his obligation to provide for his partner Ms James was dealt with and the residue of his estate passed to his family trust, of which Kyle and Kelly are the beneficiaries. In the course of the discussion, the deceased mentioned that he was surprised to hear that there was no later will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Osborne

Details

AGLC: Osborne [2012] NZHC 1846
Case: [2012] NZHC 1846
Decision Date: 26 July 2012

CaseChat Overview and Summary

This case involved an application to declare an unsigned document prepared by the deceased’s solicitor as a valid will under section 14 of the Wills Act 2007. Graeme Malcolm Osborne passed away on 20 March 2012 after a period of terminal illness and hospice care. Prior to his death, he had discussed his affairs with his son Kyle and requested to see his solicitor, Mr McDonald, to update his will. The deceased had an existing will dated 17 December 1987, which was later amended by a codicil on 1 June 2001. The deceased intended to create a new will that appointed Mr McDonald and Kyle as executors, provided for his partner Julie James, and directed the residue of his estate to a family trust. Mr McDonald drafted the will based on the deceased's instructions, but the deceased’s condition deteriorated, and he died without signing the will.

The primary legal issue the court had to address was whether the unsigned document could be declared a valid will under section 14 of the Wills Act 2007. The court considered whether the application could proceed without notice to all interested parties and if the document expressed the deceased's testamentary intentions. The beneficiaries and executors of the existing will had provided consent to the application.

The court found that the application could proceed without notice as all affected parties had consented to the making of the order. The document in question appeared to be a will, though it did not comply with the statutory requirements for signing and witnessing. The court was satisfied that the document expressed the deceased's testamentary intentions based on the evidence that the deceased conveyed his wishes to Mr McDonald on 14 March 2012. The court concluded that the only reason the will was not signed was due to the deceased's deteriorating condition.

The court declared the unsigned document, as annexed to Mr McDonald's affidavit, to be the valid last will of the deceased. This decision ensured that the deceased's testamentary intentions were fulfilled despite the procedural shortcomings in executing the will.

Orders