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 than the 1987 will as it was very much out of date.  He wanted to honour his obligation to make provision for Ms James and he wanted the residue to pass into the family trust rather than direct to Kelly and Kyle so as to avoid any entanglement with the Property (Relationships) Act 1976.  The deceased had worked for some years as a financial adviser and had a sound grasp of the principles of trusts, wills, and that Act.  Mr McDonald and Kyle both say that the deceased fully understood what he was saying and doing and was in full command of his mental faculties.

[5]      Mr McDonald prepared a draft will and other documents to give effect to the

deceased’s instructions.  He visited the deceased again at his home the following day,

15 March 2012, with the intention of discussing the draft will with him and making arrangements to have it signed once the form was agreed.  Kyle was also present on that occasion.   Mr McDonald found the deceased had deteriorated considerably in the meantime. While he was able to hold a conversation he seemed unable to remain

on the subject of the conversation for any length of time.  Mr McDonald and Kyle each  formed  a  similar  impression  of  the  deceased’s  condition.    Mr McDonald arranged for the deceased to sign a deed of gift and a power of attorney, which he had also prepared to give effect to the deceased’s instructions given on 14 March. Mr McDonald says that the deceased understood what he was doing and was happy to sign those documents but when he attempted to discuss the will, the deceased was not really taking in what Mr McDonald was saying.  Mr McDonald gave up because he did not think the deceased’s mind was on the topic and he did not wish to distress the deceased.  Mr McDonald indicated to the deceased and Kyle that he would come back in a day or two to discuss it again.  He telephoned once or twice on subsequent days but was told that the deceased was no better.  Kyle confirms that the deceased’s condition  continued  to  deteriorate.    He  died  on  20 March 2012  without  having signed the will.

[6]      The first question for consideration is whether the application may properly be dealt with on a without notice basis.  The position of all persons who would be affected if the order were made must be considered.  All of those persons must have a proper opportunity to be heard in relation to the order sought.

[7]      If the will is declared to be a valid will, it will revoke the existing will and codicil.   The beneficiaries under that will are Kyle and Kelly.   They have both consented to the making of the order sought.  The executors under the previous will are also affected.  Consents have been obtained from Mr Hancock and Mr Duffell.

[8]      In those circumstances, I consider that there is no need to take steps to give formal notice by way of service on any parties, and the interests of justice require that the application be dealt with on a without notice basis, under r 7.46(3)(e) of the High Court Rules.

[9]      I  turn  to  the  substantive  application  itself.    The  document  sought  to  be declared valid is the draft will prepared by Mr McDonald.  That document appears to be a will, in that it is in the form appropriate for the making of a will.  It does not comply with s 11 of the Act because it is not signed and witnessed as required.   I may make an order declaring the document valid if satisfied that the document

expresses the deceased’s testamentary intentions.  I am satisified that it does.  The evidence satisfies  me that  the deceased  conveyed  his  testamentary intentions  to Mr McDonald on 14 March 2012.  There is no evidence to suggest that he changed his mind and I am satisfied that the only reason that the will was not signed was the deterioration in the deceased’s condition.

[10]     There will be an order declaring valid, as the last will of the deceased, the document of which a copy is annexed as exhibit A to the affidavit of David Hugh

McDonald, sworn on 4 May 2012.

Solicitors:           McDonald Brummer, Solicitors, Hastings.

“A D MacKenzie J”