Parsons v Wilson

[2015] NZHC 3133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002264 [2015] NZHC 3133

IN THE MATTER

of Section 14 of the Wills Act 2007

IN THE ESTATE

OF ERIC WILLIAM PARSONS

Deceased

AND

RICHARD GEORGE WILSON

Applicant

Hearing:	On the papers
Counsel:	C E Harris for applicant
Judgment:	9 December 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 9 December 2015 at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Jackson Russell, Auckland

North Harbour Law, Auckland

PARSONS v WILSON [2015] NZHC 3133 [9 December 2015]

Introduction

[1]      Eric Parsons died on 26 November 2014, at the age of 91.  His last known valid will was executed on 27 November 1989.   It granted two relatively small bequests, with the residue of the estate to go to Terry and Godfrey Sherson.   As Godfrey Sherson is now deceased, the sole residuary beneficiary under the 1989 will is Terry Sherson.

[2]      The  applicant,  Richard  George  Wilson,  is  named  as  Mr  Parsons’  sole executor in his 1989 will.  Mr Wilson is a partner with the law firm Jackson Russell. Jackson Russell were Mr Parsons’ solicitors throughout his life.

[3]      Mr Parsons wrote a letter to Mr Wilson in May 2014.  Mr Wilson applies to have that document declared as Mr Parsons’ valid will, pursuant to s 14 of the Wills Act  2007  (“Act’).    The  application  has  been  served  on  all  interested  parties, including  the  surviving  beneficiaries  under  the  1989  will.    Although  Mr  Terry Sherson originally opposed the application, he has now withdrawn his opposition. The application is accordingly unopposed.

The facts

[4]      Although  the  relevant  letter  was  written  in  May  2014,  it  did  not  reach Mr Wilson until August 2015.  The reasons for that are set out in some detail in an affidavit that has been filed in support of the application by Mr Parsons’ former next door neighbour, Joshua Comer.

[5]      Mr Comer’s evidence (which I accept) is that in late May 2014 Mr Parsons phoned him and asked him to stop by after work because he wanted to discuss something.  Mr Comer said he could not get there until late.  Mr Parsons said that if it was going to be after 7.00 pm he would leave a note for Mr Comer in his letterbox, as he was tired.   By the time Mr Comer arrived at Mr Parsons’ house, his lights were out.   He checked his letterbox and found that Mr Parsons had left him some old newspapers to read, a bunch of grapes, a card for Mr Comer to give to his grandmother (who was a close friend of Mr Parsons) and a stamped and addressed letter to post.  Mr Comer’s Nissan vehicle did not have any carpet in it, so to stop

things rolling around on the floor he sometimes put them under the passenger seat. He did that with the mail and newspapers on this occasion.

[6]      Shortly afterwards, in early June 2014, Mr Comer travelled to the United States for work.  He was away for two months.  When he returned he did not use his Nissan vehicle very often, and simply forgot about the papers he had left under the front seat.

[7]      Mr Parsons died in November 2014.  In February 2015 Mr Comer decided to sell the Nissan vehicle as he was not using it much.  When cleaning it out he found the mail and newspapers under the front seat.  The letter only had a 40 cent stamp on it, which Mr Comer knew would be insufficient postage, so he put it to one side and, unfortunately, again forgot about it.   Some months later Mr Comer’s parents (who had  by then  moved  into  the  property  next  door  to  Mr  Parsons’ property) mentioned to him that it looked like Mr Parsons’ house was being readied for sale. Mr Comer deposes that he then “recalled the letter that I was supposed to post for Eric and had a very uneasy, shameful feeling.”  He located the letter and phoned the addressee, Mr Wilson of Jackson Russell, who asked him to hand deliver the letter to him immediately.  Mr Comer delivered the sealed letter to Mr Wilson the next day, 7 August 2015.

[8]      The letter is dated 21 May 2014.  It reads as follows:

Greetings Richard,

Last night I had a dream that God took me home.   I fear any breath now could be my “last”.  I want to honour my real friends now.  I ask that my will held by your firm be erased.  I trust you to divide my estate evenly between the Dils, the Cheesmans and Joshua Comer.   Please ensure the above is fulfilled upon my death.

Eric

The law

[9]      Section 14 of the Wills Act 2007 states:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will; 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.

[10]     The power contained in the provision is broad – if the document is non- compliant with the formal requirements for a will but appears to be a will and is seen as expressing the deceased person’s testamentary intentions, the Court may declare the will valid.

[11]     The onus is on the proponent of the purported will to establish on the balance of probabilities that s 14 has been made out.1 Although the civil balance of probabilities standard applies, there must be cogent  evidence that the document reflects  the  deceased’s  testamentary  intentions  “because  of  the  importance  of  a

declaration that a will be declared valid”.2

1      Kirner v Falloon [2015] NZHC 1873 at [20].

2      Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009 at [11].

Discussion

[12]     I note at the outset that I am satisfied that the 21 May 2014 letter was written by Mr Parsons.  Copies of his handwriting have been provided for comparison.  In addition, evidence has been provided from a handwriting expert that the writing is indeed that of Mr Parsons.

[13]     The letter is  clearly a  document,  which  is  defined in  s  6  of the Act  as “material on which there is writing”.  The document does not, however, comply with the execution requirements for a will in s 11 of the Act, as it was not witnessed.  I must therefore determine, in terms of s 14 of the Act:

(a)        whether the letter “appears to be a will;” and (if so)

(b)      whether the letter expresses Mr Parsons’ testamentary intentions.

[14]     Whether a document “appears” to be a will is a question of the contents of the document, not its form.3    There is no requirement that the document be headed or described as a will, or appear in its final form, as the particular document that the deceased intended to be their will.4    The essential inquiry is whether the document does all or any of the things described in the definition of the word “will” in the Act. Section 8 defines a will as a document doing any or all of the following:

(i) disposes of property to which the person is entitled when he or she dies;

or

(ii)  disposes  of  property  to  which  the  person's  personal  representative becomes entitled as personal representative after the person's death; or

(iii) appoints a testamentary guardian.

3      Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].

4      Re Estate of Hickford (deceased), above n 2, at [7] – [8]; Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.

[15]     Many cases under s 14 involve draft wills that are clearly labelled as wills, and simply have not been signed or witnesses by the requisite number of people.5   In other cases draft instructions have been considered to meet the requirements of “appearing” to be a will.   For example, an informal suicide note which was not identified specifically as a will but which contained instructions to a friend about disposing of property has been held to be a will,6  as have solicitor’s notes of a deceased’s instructions for a will (taken over the telephone).7

[16]     I am satisfied in this case that, in substance, the letter appears to be a will.  It states “I trust you to divide my estate evenly between the Dils, the Cheesemans and Joshua Comer.  Please ensure the above is fulfilled upon my death”. The document therefore sets out the proposed disposition of Mr Parsons’ property on his death. Although expressed in the form of instructions to Mr Parsons’ solicitor, the testamentary instructions within the letter are unequivocal.   Further, Mr Parsons clearly did not envisage that the formal execution of a new will would be necessary. Rather, he entrusted his solicitor to fulfil his testamentary wishes, as set out in his letter, “upon [his] death”. Mr Parsons’ view appears to have been that no further steps would need to occur, and that Mr Wilson as his solicitor/executor, would be able to action his requests on the basis of the letter alone.  I am therefore satisfied that the letter appears to be a will in terms of s 14 of the Act.

[17]     I therefore now turn to consider whether the letter expresses Mr Parsons’

testamentary intentions.

[18]     The  evidence  before  me  establishes  that  Mr  and  Mrs  Cheeseman  were old family friends of Mr Parsons and appear to have been his closest friends and carers in his later years.   Mrs Cheeseman had known Mr Parsons since she was a little girl and  they  had  been  very  close  since  the  mid-1990s.    She  contacted Mr Parsons every day, took him to his doctor’s appointments, took him shopping,

and (with her husband) visited him several times a week.

5      See, for example, Re Tutaki HC Hamilton CIV-2010-419-1208, 13 May 2011; Re MacNeil

(2009) 10 NZCPR 770 (HC); Smith v Shaw HC Nelson CIV-2010-442-239, 14 September 2010.

6      Re Estate of Wong [2014] NZHC 2554.

7      Re Estate of Feron, above n 4; Re Estate of Rowell [2012] NZHC 1823.

[19]     Mrs Cheeseman deposes that Mr Parsons told her that she and her husband would  be  beneficiaries  of  his  estate.    Mr  Comer  also  deposes  that  Mr Parsons mentioned to  him  “on  a number of  occasions  that  he would  ‘take care’ of the Cheesemans from his estate after he passed”. In addition, some handwritten amendments to a copy of Mr Parsons’ 1989  will were discovered  in  his house following his death.  These indicated an intention to leave his residuary estate to the Cheesemans instead of the Shersons.  The handwritten amendments, although also not constituting a valid will, provide further evidence of Mr Parsons’ intention to make a significant testamentary disposition in favour of the Cheesemans.

[20]     Mr and Mrs Dil were Mr Parsons’ neighbours.  The evidence indicates that they had a warm relationship with Mr Parsons and shared many interests in common. They used to look in on Mr Parsons often and take him the occasional meal.  Mr and Mrs Dil, together with Mr and Mrs Cheeseman, arranged Mr Parsons’ funeral and later scattered his ashes in accordance with his wishes.

[21]     Mr Comer had known Mr Parsons since 1994 when his grandparents moved into the neighbouring house, on the same driveway.  Mr Parsons became particularly close to Mr Comer’s grandmother after her husband passed away.  When she moved into a retirement home, Mr Comer and his wife moved into his grandparents’ former home and became close to Mr Parsons, keeping an eye on him, providing companionship, looking after his garden and running errands for him.   Mr Comer visited Mr Parsons in hospital on the day of his death, and was the last person to see him alive.

[22]     Mr Parsons does not appear to have discussed his intention to name the Dils and Mr Comer in his will with those persons or, indeed, anyone else.  Nevertheless I am satisfied from the letter itself (which is clear, direct and decisive) and the supporting evidence regarding his close relationship with the Dils and Mr Comer, that it was Mr Parsons’ genuine intention that they be beneficiaries of his estate, together with the Cheesemans, in recognition of their friendship and support over the last 20 years or so of his life.

Result

[23]     For the reasons outlined, I am satisfied that Mr Parson’s letter of 21 May

2014 meets the requirements of s 14 of the Act.  I therefore:

(a)      declare that the letter dated 21 May 2014 from Eric William Parsons to  Richard  George Wilson,  attached  to  the  originating  application dated 28 September 2015, is a valid will under section 14 of the Wills Act 2007;

(b)declare that the revocation referred to in Mr Parsons’ 21 May 2014 letter is a valid revocation of his 27 November 1989 will held with Jackson Russell;

(c)       order  that  Richard  George  Wilson  be  appointed  as  Mr  Parsons’

intended executor and trustee of his estate in respect of his 21 May

2014 will; and

(d)order that the applicants’ costs of and incidental to this application be paid out of Mr Parsons’ estate.

Katz J